JAGDISH NARAIN Vs. SHYAM SUNDER

JUDGEMENT

(1.) AN amount of Rs. 32,000/ - plus an amount of interest was due against the non -petitioner, Om Prakash and his brothers. It is an admitted position that on 1st August, 1982, no transaction has taken place. Neither any article was sold to the non -petitioners on credit, nor any property was received by the present non -petitioners on 1st August, 1982. The allegation against the petitioner is that on 1st August, 1982, he came to Gangapur City to purchase some goods from other parties. The petitioner's bank and creditors were not in know of the fact that the petitioner has come to purchase the goods from other party. So they contacted him in Gangapur City and demanded the amount due from him. The further allegation is that Om Prakash, non -petitioner, issued a cheque for Rs. 5000/ - towards the outstanding amount in favour of the petitioner. The cheque was dishonoured by the Bank.

(2.) THE contention of the petitioner is that no amount was in the account of the non -petitioner. Om Prakash and the non -petitioner fraudulently and with a dishonest intention issued the cheque in favour of the petitioners to cheat them. A complaint was filed before the learned Magistrate, Gangapur City, who took cognizance against the non -petitioner. A revision petition was preferred before the learned Sessions Judge who accepted the revision petition and set aside the order dated 4th January, 1983, passed by the learned Magistrate. The learned Sessions Judge came to the conclusion that no case of cheating is made out by the petitioners. He was of the view that it is a civil dispute and Section 45 read with Section 420, IPC does not apply in the instant case. Being aggrieved with the Older passed by the learned Sessions Judge, in revision, the petitioners have preferred this petition Under Section 482, Cr. PC, 1973.

(3.) NOW , the question before me is a question which is to be determined on the basis of the admitted position by the complainant as stated in the complaint and further proved by his statement in the Court. The contention of the non -petitioners that the petitioner has failed to prove that there was sufficient amount on 1st August, 1982 in the Bank cannot be accepted at this stage as it will amount to allowing the non -petitioners to defend at the stage of issuance of the process.