MANJU SHREE Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) THIS application has been filed under Section 482 of the Code of Criminal Procedure for quashing the order dated 3. 2. 2000, whereby and where under the learned Judicial Magistrate, Ranchi took cognizance for the offence under Section 138 of the Negotiable Instruments act, 1881 and also praying for quashing the entire proceedings of Complaint case No. 141 of 1999.

(2.) THE case of the prosecution in brief as alleged that both the complainant and the accused are known to each other. On 1. 10. 1994 the petitioner took a friendly loan having without any interest with the consent of her husband from the complainant for their own use with an assurance that the would refund it with a month and, at the same time in presence of the two witnesses she also executed hand note on Revenue Stamp and at the same time the petitioner handed over a cheque with the signature being No. A/238 346055 dated 18. 12. 1998 of State Bank of India, Main Road, Ranchi and that was the postdated cheque with an assurance that in case if she would fail to pay the amount in time the complainant may get it encashed from the concerned Bank after 18. 12. 1998. After completion of one month the complainant requested the accused/petitioner to repay the loan money on which the petitioner replied that the cheque which has been given to you would serve the purpose. Thereafter, the complainant presented the cheque for encashment. The said cheque was sent for clearance which was returned on 4. 2. 1999 without making any payment on the ground and with the objection "insufficient balance". After getting information regarding dishonouring of the said cheque, complainant served a legal notice to the petitioner and after receiving the legat notice the accused person replied the same through her lawyer on 24. 2. 1999 by which the complainant came to know that he has been cheated by the accused/petitioner and this complaint case was filed, which was later on sent to the Officer-in-Charge, Argora Police Station for institution and investigation under Section 165 (3) Cr. RC. , but the police submitted report in the Court of the Chief Judicial magistrate, Ranchi stating therein that it is a civil matter. Thereafter, the complainant filed a petition before the Chief Judicial Magistrate on 8. 9. 1999 for allowing the complainant to lead the evidence of witnesses. The Chief Judicial Magistrate thereafter transferred the said case to the Court of Shri A. K. Rai, Judicial Magistrate, Ranchi under Section 192 of the Code of Criminal Procedure for inquiry and disposal. The learned Magistrate recorded the statement of the complainant on solemn affirmation and the witnesses were examined. After hearing the parties and perusing the evidence on record, the learned Magistrate found that there is sufficient material to proceed with the case for the offence under Section 138 of the Negotiable Instruments Act, hence ordered for issuance of summon.

(3.) ONE counter affidavit has also been filed from the side of the complainant claiming therein that there is no illegality in the order impugned and the accused/petitioner after taking the amount also executed a hand note in token of the receipt of the said amount and the cheque issued by the petitioner was admittedly bounced by the Bank as there was no fund in the account of the petitioner had already filed petition under Section 205, Cr. P. C. in the Court below praying therein to dispense with her appearance and petition was allowed by the learned Court below with a condition that she shall be physically present at the time of explaining accusation, at the time of recording statement under section 313, Cr. P. C. and at the time of pronouncing of judgment, but the petitioner/accused remained absent at the time of explaining accusation and as such her petition allowing dispensing with her attendance/appearance was rejected. It is also stated that the petitioner and her husband are in habit of taking money by playing fraud which will be evident from Annexure - A to the counter affidavit and the petition which is without any merit, is fit to be dismissed.