At, High Court of Jharkhand
By, THE HONOURABLE MR. JUSTICE AMARESHWAR SAHAY
For the Appearing Parties: A. Lal, Advocates.
(1.) IN this application, the petitioner have challenged the order dated 31. 7. 1998 whereby their application for discharge was rejected by the Sub-Divisional Judicial Magistrate, Jamshedpur.
(2.) THAT short facts giving rise to this application are that the opposite party No. 2 Miss Seema Kumari filed a complaint petition before the Chief judicial Magistrate at Jameshedpur for taking action against the petitioners for committing offence under Sections 420/ 34 of the Indian Penal Code and under Section 138 of the Negotiable Instruments Act. The Chief judicial Magistrate sent the complaint to Police under the provisions of Section 156 (3) of the Criminal Procedure Code for investigation. After investigation, the Police submitted charge-sheet under Sections 420/34 of the indian Penal Code and under Section 138 of the Negotiable Instruments act against the petitioner on the basis of which cognizance was taken by the S. D. J. M. for the aforesaid offences.
(3.) SUBSEQUENTLY, on 26. 2. 1998 a petition was filed on behalf of the petitioners before the S. D. J. M. Jamshedpur for their discharge on the ground mentioned in the said petition. The said petition for discharge has been made Annexure-3 to this application.
(4.) ACCORDING to the complainant opposite party No. 2 the allegation made in the complaint petition which was subsequently registered as FIR is that, she purchased Chasis of Truck from the petitioners who were the dealers of Ashok Leyland Chasis. She was given guarantee by the accused persons with regard to the said vehicle and they promised that if any part of vehicle was found to be defective then the same would be replaced free of cost during the guarantee period. It was further alleged that during the guarantee period, the gear-box of the vehicle went out of order and was found to be not repairable and then the informant/opposite party No. 2, asked the petitioners to replace the said gearbox. It is said that the opposite party No. 2 was asked by the accused persons (Petitioners) to get the gear-box replaced at the cost of the Company and to submit the Bills and Vouchers so that the payment can be made to her. The informant alleged that she incurred cost of Rs. 60,000/- in replacing the gearbox and the Bill voucher was submitted to the petitioners. It was further alleged that the opposite party No. 2 was given by the accused person, a cheque of Rs. 10,000/- only drawn on Bank of Baroda, Ranch with an assurance that the payment of the balance amount of Rs. 50,000/- will be made later on. It was alleged that the informant opposite party no. 2 deposited the said cheque to the banker for payment on 15. 5. 1996 but the same was dishonoured on 28. 5. 1996 due to insufficient fund in the account.
(5.) MR. A. Lal learned counsel for the petitioners submitted that no case whatsoever of criminal nature is made out against the petitioners and therefore, the criminal prosecution against them be quashed. It has further been stated that Section 142 of the Negotiable Instruments Act specifically prescribed that the complaint under Section 138 of the Negotiable Instruments act has to be made within one month from which the cause of action arises under Clause of the proviso to the Section 138 of Negotiable Instruments act therefore, the prosecution was barred under Section 142 (2) of the negotiable Instruments Act. It has further been submitted that no offence under Sections 420/34 of the Indian Penal Code is made out as the petitioner had no dishonest intention at all . In this regard it is submitted that the petitioner have already paid Rs. 10,000/- by way of Bank Draft to the opposite party No. 2 (complainant) i. e. the amount of cheque which was dishonoured and she has accepted the same. Mr. A. Lal, learned counsel for the petitioners has drawn my attention to the Order dated 27. 11. 1996, passed by the Sessions Judge, Jamshedpur while considering the anticipatory bail of the petitioners. In the said order it was noticed that the informant-opposite party No. 2 did admit that she had received a sum of Rs. 10,000/- by way of Bank draft from the petitioner and also the fact that the Company had allowed her claim for defective gear-box to the tune of Rs. 30,235/- which was credited to her bank account. In this view of the matter Mr. Lal submit that no case whatsoever either under Section 138, Negotiable Instruments Act or 420/34 of Indian penal Code is made out and these facts were not considered by the learned s. D. J. M. while ejecting the prayer of the petitioners for discharge.
(6.) I find force in submission of learned counsel for the petitioners. It appears that the amount of cheque which was dishonoured, was already paid by the petitioners which was duly received by her and further, the claim for defective gear-box was also settled by the Company with the informant and as such in my view the grievance of the opposite party No. 2 was already redressed. The action of the petitioner in payment of amount of Rs. 10,000/- by way of Bank Draft and the settlemen
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t of claim of the complainant regarding defective gear-box clearly shows that there was no intention of the petitioners to cheat the informant-opposite party No. 2. In view of the above fact, I hold that the learned S. D. J. M. failed to consider these aspects of the matter which were necessary to be looked into while disposing the petition for discharge. Accordingly this application is allowed. The impugned order dated 31. 7. 1998 passed by the S. D. J. M. Jamshedpur in G. R. No. 2236/96 is hereby set aside and the petitioners are discharged. Petition allowed.