Miss. Resemin Sherally vs Shree Ganesh Joshi

I.P. Singh, J.—This revision petition is directed against the order dated 11.12.1995 passed by the Judicial Magistrate 1st Class, Katihar, by which he has discharged the opposite party to a complaint case-filed by the petitioner u/s 240 of the Indian Penal Code. The short fact leading to the case is that in the month of April, 1988, the opposite party took a loan of Rs. 40,000/- with a promise to return the money with interest. On the request of the opposite party the complainant gave a cheque on 7.4.1988 in the name of accused firm M/s. Janki Enterprises, Katihar and was duly encashed by the accused opposite party. It has been further stated that the amount of Rs. 40,000/- was returned in installments but till 30.11.1994 the money was still due with interest amounting to Rs. 58,257.40 p. and inspite of repeated notice, the opposite party did not return the money and the accused transferred his entire firm in the name of his son with a dishonest intention to usurp the entire money. It has been also alleged that from very beginning the intention of the accused was to deceive the complainant. Thereafter the complainant filed the complaint petition before the learned Chief Judicial Magistrate, Katihar, bearing Complaint Case No. 1085 of 1994 on 16.12.1994.

It has been stated that on the same day the learned Chief Judicial Magistrate, Katihar, examined the complainant on solemn affirmation and summons were issued against the accused u/s 420 of the Indian Penal Code. It has been stated that after the cognizance taken by the learned Chief Judicial Magistrate the case was transferred to the Judicial Magistrate and three witnesses were examined including the complainant. In that process the opposite party filed an application to discharge the accused. Since no case u/s 420 of the Indian Penal Code was made out, after hearing the opposite party the learned Judicial Magistrate discharged him of the charge on 11.12.1995. From the order impugned it appears that the complainant advanced Rs. 40,000/- through cheque to the opposite party. The whole amount of Rs. 40,000/-has been returned in installments. The contention of the complainant is that there was a promise to pay interest as well and the same is due with the opposite party. The allegation of the complainant is that the opposite party is liable to pay interest and he has deceived the complaint. The non-payment of alleged interest does not carry element of deception to constitute a criminal offence u/s 420 of the Indian Penal Code. In my opinion, the (earned Judicial Magistrate has rightly held that there was not enough ground to charge the opposite party u/s 420 of the Indian Penal Code and the complainant may avail the civil remedy, if so advised. I do not find any good ground to interfere with the order impugned. Accordingly, this petition is dismissed.