FAIZAL KHAN Vs. STATE

JUDGEMENT

(1.) This application has been filed for quashing of the order dated 18.9.2008 passed by the then Judicial Magistrate, 1 st Class, Dhanbad in C. P, case. No. 769 of 2008 whereby and where under the Court has taken cognizance of the offence punishable under Section 138 of the Negotiable Instrument Act against the petitioner.

(2.) The facts giving rise' to this application are that the complainant, Surendra Prasad @ Surendra Prasad Sinha lodged a complaint case bearing No. 769 of 2008 alleging therein that one Pramod Pandey. who used to taught his son came with one Faizal Khan (petitioner) who introduced himself to be an officer of the IB and also told that he can arrange a job for his son provided a sum of Rs. 1,00,000 is paid. Since Faizal Khan had come with Pramod Pandey. known to him. he by believing the version of Faizal Khan agreed to make payment. After some days, a sum of Rs. 64,000 was paid to Faizal Khan. On receiving such amount, one letter relating to training at J. A. Housing Development Pvt. Ltd. was handed over to his son. Thereupon amounts were paid on different dates. Again another letter relating to training was given but the petitioner was neither imparted with the training nor was offered job and therefore, the complainant became suspicious and insisted upon Faizal Khan to return the money, upon which a cheque of Rs.35.000 was given which on its deposit got bounced, information of which when was given to the complainant, he became quite furious and even extended threat of dire consequences. Thereupon, when notice was given but payment was not made, the complaint was lodged. On holding enquiry, cognizance was taken by the impugned order which is under challenge.

(3.) The sole point which has been raised in this application is that cheque has never been drawn in respect of debt or liability rather it was given upon a breach of a contract which had been illegally made and as such, it is never enforceable and when the contract under which cheque was given is never enforceable, complaint case under Section 138 of the Negotiable Instrument Act cannot be maintained.