RASHID ALI Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) The Petitioner has invoked the inherent jurisdiction of this Court under Section 482 of Code Criminal Procedure for quashment of the entire criminal proceedings arising out of C. Case No. 902 of 2007 for the alleged offence under Section 138 of the Negotiable Instruments Act, 1881 including the order impugned dated 8.7.2010 passed by Sri. O.N. Choudhary, Judicial Magistrate, Ist Class, Palamau at Daltonganj by which prima facie materials were found against the Petitioner Rashid Ali to proceed against him.

(2.) The prosecution story in short, as unfolded in Complaint Case No. 902 of 2007 filed on behalf of the O.P. No. 2-complainant before the CJM Palamau at Daltonganj, was that he was a Kendu leaves contractor in the district of Latehar and the Petitioner also used to deal in. Mohulan leaves in the same district and being the businessmen in the district of Latehar they had developed business contacts as they were having acquaintance to each other and had also developed intimacy by exchanging money. It was alleged in the complaint petition that on 3.4.2007 the Petitioner- accused Rashid Ali came to the complainant opposite party No. 2 and requested him to lend Mm Rs. 3 lakhs which was urgently required for his business purpose and in lieu thereof he offered to issue a cheque in the name of the complainant-opposite party No. 2 of the same amount. Accordingly the complainant-opposite party No. 2 having been satisfied with the need of the Petitioner delivered a sum of Rs. 3 lakhs in cash to the accused-Petitioner and in lieu of that the Petitioner issued a; cheque No. 687117 on 3.4.2007 for Rs. 3 lakhs, however, with the request to the complainant-opposite party No. 2 to present the same before the Banker after 2/3 months for withdrawal when there would be sufficient money in his account. When the total amount in cash could not be returned to the complainant-O.P. No. 2 within time stipulated, complainant presented the cheque on 2.8.2007, which was issued by the accused-Petitioner at the Punjab and Sindh Bank, Daltonganj Branch in his current A/C No. 830 but the same returned unpaid due to "insufficiency of fund" to which the complainant informed the accused-Petitioner on telephone. The Petitioner then assured that the said cheque would be in cashed within five days and pursuant to such assurance, the complainant presented the said cheque again in the same bank on 9.8.2007 which once again was returned "unpaid" due to "insufficiency of fund" of the account holder in his account. A legal (demand) notice was sent to the accused-Petitioner calling upon to return the money but no satisfactory answer could be given and therefore, complainant-opposite party No. 2 had reason to believe that the intention of the accused-Petitioner was not to return the money to the complainant since very beginning and in that manner he cheated the complainant. A discharge petition was filed on behalf of the accused-Petitioner before the court concerned which was found not being maintainable as the offence was in the nature of summons trial case wherein there was no provision of discharge of any accused. After enquiry under Section 202 Code of Criminal Procedure the learned Judicial Magistrate found prima facie offence under Section 138 of Negotiable Instruments Act against the Petitioner -accused and he was called upon to appear on the date fixed to explain him substance of accusation.

(3.) The learned Sr. Counsel Mr. Jai Prakash submitted that in course of enquiry under Section 202 Code of Criminal Procedure, the complainant filed photocopies of cheque No. 687117, deposit slips of the said cheque on 2.8.2007 and 9.8.2007, bank memo dated 9.8.2007 and demand notice dated 18.8.2007 and its postal receipt. It was nowhere mentioned in the complaint petition that the demand notice, which was sent by the complainant to the accused-Petitioner, was ever served upon him, in absence of which the complaint was not maintainable as no notice was ever served upon the accused-Petitioner