At, High Court of Bihar
By, THE HONOURABLE MR. JUSTICE I.P. SINGH
For the Appearing Parties: Sanjiv Kumar Jha, T.N. Jha, Advocates.
I.P. SINGH, J.
(1.) This application has been filed for quashing the order passed dated 15.12.2005 passed in C.A. No. 2417 of 2004 by the Judicial Magistrate, 1st Class, Katihar by which a prima facie case under Section 420 of the Indian Penal Code was made out against the petitioner and a summon was issued against the petitioner.
(2.) It has been submitted that the complainant never gave the amount of Rs. 33,500 to the firm of the petitioner for accessories as alleged.
(3.) It has
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further been submitted that the complainant himself has stated in the complaint that Bank concerned gave Rs. 3,09,613/-. The petitioner handed over the tractor to the complainant along with all the accessories because tractor includes all the accessories and question does not arise to take any extra charge in terms of money for the accessories from the complainant.
(4.) It has also been submitted that the complainant at no place mentioned the date as to when the alleged amount as referred in the complaint petition was given to the petitioner. If the complainant would have given any amount to the petitioner he must have mentioned the date and this fact proves that the complainant lodged a false case against the petitioner on the basis of a concocted and manufactured story and as such no cognizance can be taken under Section 420 of the Indian Penal Code on the basis of the vague statements as made in the complaint petition.
(5.) It has further been submitted that the complainant could not manage the amount to be deposited for the Bank's finance and for this purpose the complainant approached to the petitioner to give such amount so that the complainant can get the loan for tractor. The complainant handed over the cheque No. 0342915 amounting to Rs. 20,000 to the petitioner for the money which the complainant had taken from the petitioner for taking loan from the Bank concerned.
(6.) It has further been submitted that the petitioner with due endorsement on the back of the cheque deposited above referred cheque in the account at State Bank of India, Katihar branch on 25.2.2003 for collection the said cheque along with cheque return Memo dated 9.4.2003 was sent back to the collecting branch with reason for return of the cheque 'Referred to Drawer'.
(7.) It has further been submitted that on , the receipt of the information of the return of the deposited cheque as being dishonoured the petitioner sent an Advocate's Notice through a registered post on 23.4.2003 to the drawer of the cheque informing him that the cheque has been dishonoured and returned and that no step has been taken by the Opposite Party No. 2 to make the payment of the cheque amount.
(8.) It has also been submitted that the Opposite Party No. 2 did not take care to make the payment of the cheque amount to the petitioner and accordingly, he made himself liable to be prosecuted under Section 138 of the Negotiable Instruments Act and accordingly, petitioner filed a complaint case being C.A. No. 762 of 2003 in the Court of Chief Judicial Magistrate, Katihar.
(9.) It has also been submitted that the petitioner has given money to the complainant because he had no money to deposit in the Bank. In lieu of that complainant has issued cheque of Rs. 20,000 which was dishonoured as drawer not found the amount in his account. The petitioner filed a complainant case in 2003 and this case is counter blast to the case filed by the petitioner.
(10.) It has been submitted that Opposite Party No. 2 never paid Rs. 33,500 for the accessories to the petitioner. It is the petitioner who helped the Opposite Party No. 2 to meet the shortfall of the amount to get the loan by the Opposite Party No. 2 from the Bank. There is no documentary evidence to show that the complainant paid Rs. 33,500 of the petitioner. No such ingredient of Section 420 IPC is attracted in this case. It can only be a civil dispute and the Court below should not have taken cognizance.
(11.) There are catena of decisions both from the Apex Court as well as the High Courts in which it has held that an offence of cheating and punishment under Section 420 IPC, there should be dishonest intention from beginning. In this case, it appears that the petitioner is an intermediary who helped the complainant to get a loan from Bank for purchasing Tractor.
(12.) It has also been submitted that he had lent some money also to the complainant. There is no prove of allegation that Rs. 33,5000 was ever delivered to the petitioner. On the other hand, petitioner has also filed a case for dishonour of cheque of Rs. 20,000 which was given by the Opposite Party No. 2.
(13.) From the conduct of the petitioner, it appears that there was no intention to cheat the complainant from beginning rather his act was helpful to the complainant.
(14.) Considering the facts referred above, the impugned order is not sustainable in eye of law and is fit to the quashed. Accordingly, the impugned order dated 15.12.2005 is hereby quashed and this petition is allowed. Petition allowed