AVI KANT PRASAD Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) THIS petition under Section 482 of the Code of Criminal Procedure has been filed on behalf of the petitioners for quashing the order dated 3.6.2000, passed by Mr. M.M. Choudhary, Judicial Magistrate, 1st Class, Chas, Bokaro (presently pending in the Court of Mrs. Sima Sinha, Judicial Magistrate, 1st Class, Bokaro) in Complaint Case No. 95 of 2000 (T.R. No. 1123 of 2000) whereby learned Court below took cognizance of the offences under Sections 420 and 323 of the Indian Penal Code and also under Section 138 of the Negotiable Instruments Act.

(2.) THE fact of the case giving rise to this petition is that the complainant Krishna Prasad lodged a complaint case stating therein that he had purchased 2000 shares worth Rs. 50,240/- of Unit Trust of India. Subsequently he approached one Anjani Kumar Shrivastava and Priya Ranjan Prasad Shrivastava (petitioner No. 2) who have engaged themselves for purchasing and selling shares and sold 2000 shares to them and in lieu of that, Anjani Kumar Shrivastava gave a cheque worth Rs. 30,240/ - and assured to give the balance amount of Rs. 20,000/- after a fortnight. But when he deposited the cheque in his Bank, it got dishonored as the payment had been stopped. Thereafter he approached to the accused persons, who again assured to pay the amount but did not pay the same and subsequently when accused No. 1 Anjani Kumar Shrivastava was not found in the office he came to Sindri at the place of Ravi Kant Prasad, petitioner No. 1, who happens to be brother of both the accused and asked for money but the accused persons all the three refused to make payment and he was abused and pushed away from his house by all the accused persons.

(3.) LEARNED Counsel appearing for the petitioners submits that the cognizance taken by the Court under Section 138 of the Negotiable Instruments Act is quite bad as the mandatory provisions as contained in Sub-clause (b) of Section 138 of the Negotiable Instruments Act has not been complied with as admittedly no demand was put forward by the' complainant within 15 days from the receipt of the information from the Bank regarding return of the cheque. He further submits that cognizance taken under Section 420 of the Indian Penal Code is also quite bad as there has been absolutely no ingredient in the complaint petition constituting offence under Section 420 of the Indian Penal Code. In this regard it was submitted that it is never the case of the complainant that he was induced in any manner by the accused persons to part with the share with a view to cheat him. Similarly, the cognizance taken under Section 323 of the Indian Penal Code is also bad as there has been no allegation constituting the offences under Section 323 either in the statement of the complainant made on solemn affirmation or in the statement of the witnesses. Therefore, cognizance taken against these two petitioners of the offences as aforesaid is quite bad. Learned Counsel submits that one of the accused, namely, Anjani Kumar Shrivastava challenged the order taking cognizance before this Court, vide Cr. Misc. No. 722 of 2002 and in this Court after taking into consideration the submission as has been advanced hereinbefore quashed the order taking cognizance of the offence and the case of the said Anjani Kumar Shrivastava is similar to that of these petitioners and hence this petition also deserves to be allowed.