MAMA CHANDRA @ MAM CHAND Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) L . The petitioners have invoked the inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure for quashment of the order of cognizance taken under Section 138 of the Negotiable Instrument Act on 20.12.2001 as also against the petitioners by the Chief Judicial Magistrate, Sahibganj in PCR No. 1 12 of 2001 and the impugned order dated 10.1.2005 passed by the SDJM, Sahibganj dismissing the petition of the petitioners herein filed on 29.9.2004 for stopping their further criminal proceeding.

(2.) THE brief fact of the case as it stands narrated in PCR No. 112 of 2001 is that the opposite S T P L - Dishonour of C heque Judgements 13.1 [This product is licenced to keyur, ahmedabad, ahmedabad] Mama C handra @ Mam C hand Vs. State Of Jharkhand 1109 party No. 2/complainant Bimla Devi presented the complaint before the C.J.M., Sahibganj narrating inter alia that her son-in-law Vijay Meskara used to live at Jaipur and in course of visit to that place, her husband Shambhu Prasad Agarwal came in contact with the accused A.K. Gupta and the latter proposed that his friend Mulchandra Berwa (accused) was having a plot vide No. 108 A in Krishna Colony consisting of an area 325 square yards, which could be sold to him at the cheaper rate. The agreement for sale of the land was finalised at Barhet against consideration amount of Rs. 3,10,000/- to which the opposite party No. 2/complainant paid the entire amount to the accused A.K. Gupta on different dates, besides, Rs. 40,000/-being the separate amount for raising construction thereon the plot. The complainant alleged that when the construction work started over the land, the police came at the plot and stopped the work on the plea that one Mahabir Prasad Godha claimed that the plot which was sold by the accused persons and thereby cheated the vendee. The accused were arrested and remanded to the Judicial custody and later on were released on bail who admitted their guilt. The complainant narrated that the accused A.K. Gupta delivered a cheque No. 41518 of Rs. 3,50,000/- on 1.1.2001 to her after he was released on bail but at the same time, he went on requesting her not to tender the cheque as he promised to return the amount in cash yet, before expiry of the period of validity of the cheque, the cheque was presented within six months at Barhet for collection which returned unpaid on 7.6.2001 with the endorsement "insufficient fund". The complainant being aggrieved then sent a notice on 14.6.2001 under Section 138 of the Negotiable Instruments Act to the accused A.K. Gupta, acknowledgement due to which was received on 19.6.2001 but without any reply from him. Finally it was alleged that the accused Nos. 3,4 and 5 (including the petitioners) executed a power of attorney in favour of the son-in-law of the complainant in respect of the land in question on 1.10.2000 besides, an agreement duly executed by them on 13.2.2001 and in that manner the accused persons committed offence under Section 420 of the Indian Penal Code and under Section 138 of the Negotiable Instruments Act.

(3.) THE accused persons then appeared in the Court below, obtained their bail and the petitioners filed a petition on 29.9.2004 for stopping their criminal proceeding which was heard at length and the learned SDJM, Sahibganj by order dated 10.1.2005, rejected their prayer on the ground that the CJM Sahibganj by his order dated 20.12.2001 after inquiry took cognizance of the offence finding a prima facie case under Section 138 of the Negotiable Instruments Act against them which could not be challenged by the petitioners till then and since there was no fresh material for consideration on the petition of the petitioners, it was rejected.