Arun Kumar vs The State of Bihar

Ashutosh Kumar, J.—Heard Mr. Vijay Shankar Shrivastava, learned counsel for the petitioners, Mr. Sangeet Deokuliar, learned counsel for opposite party No. 2 and Mr. Jharkhandi Upadhyay, learned Additional Public Prosecutor for the State.

The petitioners seek quashing of the order dated 22.04.2008 passed by the learned Chief Judicial Magistrate, Motihari, East Champaran in Complaint Case No. C-1914 of 2007, whereby cognizance has been taken under Sections 406, 420, 504, 506 and 120B of the Indian Penal Code and Section 138 of the Negotiable Instruments Act.

A long complaint has been lodged by opposite party No. 2. The complaint refers to a host of situations and circumstances, all of which could have been termed as the genesis of the occurrence. However, the cumulative reading of the entire narration makes out absolutely no case against the petitioners. The complainant claims to be known to the petitioners from before. An intention was expressed by the complainant to purchase land. This was facilitated by petitioners No. 2 and 3, one of whom suggested that petitioner No. 1 deals with the sale and purchase of land and, therefore, he could help the complainant. The complainant claims to have given Rs. 11 lakhs to the accused persons.

Learned counsel for the petitioners, at this stage, stated that there is absolutely no statement in the complaint petition as to the payment was made by what mode and against which property. The complaint also does not state as to whose land was offered for sale and what was the quoted price. In the absence of any such categorical statement in the complaint, the allegation of the complainant having parted with such huge amount of money does not inspire confidence.

The story developed in the complaint petition is that when no land was conveyed to the complainant, an attempt was made to have the money returned. The accused persons are said to have dilly-dallied in returning the amount. Later, three cheques are alleged to have been issued by petitioner No. 1 in favour of opposite party No. 2. There is no statement in the complaint petition as to whether such cheques were deposited with the Bank and they were not honoured.

True it is that the petitioner No. 1 himself admits of having written to Branch Manager of Punjab National Bank for stopping the payment of such cheques, but this was occasioned because the petitioner No. 1 alleged that on gun point his cheque-book was taken away from his possession and certain leaves were misused.

The case, which was lodged by one of the petitioners, as against the complainant-opposite party No. 2, is still pending adjudication. In absence of any notice having been sent to the petitioner No. 1 for the cheques being dishonoured by the Bank, the requisite document to bring home the charges under Section 138 of the Negotiable Instruments Act is missing. Learned counsel for the petitioners submitted that the order taking cognizance under Section 138 of the Negotiable Instruments Act was absolutely incorrect in the eyes of law.

The further story, which has been narrated in the complaint petition, is that the help of a local M.L.A. was garnered by the complainant. On being pressurized, the petitioner No. 1 agreed for alienating some part of his property at a commercial place in Patna as a surety for the return of the amount, which was being claimed by the complainant.

Learned counsel for the petitioners submits that even this story does not appear to be probable as from his own showing as the complainant agreed to the condition that in the house standing over such land, which was given in surety, as has been stated in the complaint petition, the petitioner No. 1 was permitted to stay. The long story, therefore, it has been urged, makes no sense. Offence of criminal breach of trust, cheating and showing intemperate behaviour at the time of demand of return of money are offences, which require requisite actus reus.

The presence of a complaint case against opposite party No. 2 being on record, a petition indicating apprehension of retaliation from the side of the complainant and the vagueness of the complaint makes the order of cognizance dated 22.04.2008 passed by the learned Chief Judicial Magistrate, Motihari, East Champaran in Complaint Case No. C-1914 of 2007 highly unsustainable in the eyes of law. The same is quashed.

The application is allowed.