Case Facts:
Patna High Court Cr.Misc. No.2461 of 2010 (7) dt.28-07-2012 IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.2461 of 2010 ====================================================== 1. S. M. Asfar Alam S/O Late S. Ali Mohammad R/O Ali Manzil Choona Gali, P.S.- Kotwali, Dist.-Gaya. Presently Residing At Flat No.402, A/6, Madina Building Millar Nagar, New Link Road, Andheri(West) Mumbai-400053. .... .... Petitioner/s Versus 1. The State Of Bihar 2. Fatima Khatoon W/O Dr. Mumtaz Ansari R/O 51/2, Haroon Nagar Colony, Phast-II, P.S.-Phulwarisharif, Dist.-Patna. .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. Surya Narayan Prasad Sinha (Sr. Advocate) Mr. Anirudh Kr. Singh For the Opposite Party/s : M/s. Soni Shrivastava For the State : Pushpa Sinha No. 2 (A.P.P.) ====================================================== CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR SRIVASTAVA ORAL ORDER 7 06-08-2012 This petition under Section 482 of the Cr.P.C. has been preferred for quashing the order dated 19.12.2007 passed by Sri A. K. Singh, Judicial Magistrate, 1st Class, Patna in Complaint Case No. 42 of 2007 whereby and where under he having found prima facie case under [STATUTE] and 138 of Negotiable Instrument Act ordered to issue process against the petitioner. The brief fact, which lies to file this quashing petition, is that Opposite Party No. 2, namely, Fatima Khatoon filed above stated complaint case bearing Complaint Case No. 42 of 2007 in the court of Chief Judicial Magistrate, Patna alleging therein inter-alia that she happens to be wife and attorney of one Patna High Court Cr.Misc. No.2461 of 2010 (7) dt.28-07-2012 Dr. Mumtaz Ansari with whom the petitioner had entered into an agreement on 19.10.2001 for borrowing a loan of rupees four lacs for carrying on his own business and on the same day petitioner received rupees three lacs fifty thousand through demand draft and rest rupees fifty thousand in cash and as the security petitioner issued a post dated cheque bearing cheque no. 350175 dated 20.11.2002 to the husband of Opposite Party No. 2. As per terms of the agreement, it was obligatory on the petitioner to pay a minimum monthly profit of rupees sixteen thousand every month by cash or cheque to the husband of the Opposite Party No. 2 but petitioner paid the aforesaid amount only up to the month of September, 2002. It is further alleged that the aforesaid Dr. Mumtaz Ansari appointed the Opposite Party No. 2 as his attorney for the above stated property including some others on 20.08.2002 and after that she approached the petitioner and requested for the payment of monthly profit for the month of October, 2002 and onwards but petitioner avoided to pay on the pretext of this or that and after that Opposite Party No. 2 informed the petitioner that she was going to present the above stated cheque of security with the concerned bank but on the request and promise of the petitioner, she did not present the aforesaid cheque. In the meantime, validity of the aforesaid cheque expired and after great persuasion and Patna High Court Cr.Misc. No.2461 of 2010 (7) dt.28-07-2012 request petitioner issued another post dated cheque vide its no. 119361 dated 25.09.2006 and when the petitioner did not fulfil his promise, the Opposite Party No. 2 presented the aforesaid cheque of rupees four lacs to Bombay Mercantile Bank, Frazer Road Branch, Patna for encashment but the same became bounced and returned to the Opposite Party No. 2 on 12.11.2006 with an endorsement of account closed. Thereafter, she served a legal notice to the petitioner but the petitioner did not make the above stated payment intentionally and fraudulently and after that she filed the above stated complaint case. Learned Chief Judicial Magistrate, Patna took cognizance of the offence and transferred the record to the court of Sri A. K. Singh, Judicial Magistrate, 1st Class, Patna for enquiry and trial. The learned Judicial Magistrate recorded the solemn affirmation of Opposite Party No. 2 and also the statements of witnesses and having perused the statements and documents available on the record passed the impugned order dated 19.12.2007 taking cognizance of [STATUTE] and 138 of Negotiable Instrument Act against the petitioner in the manner as stated above. Being aggrieved with the impugned order, petitioner preferred the instant quashing petition. Patna High Court Cr.Misc. No.2461 of 2010 (7) dt.28-07-2012 Notice was sent to Opposite Party No. 2 by both the processes by this Court and ordinary notice served on the son of sister of Opposite Party No. 2 whereas A/D of registered cover was signed by the Opposite Party No. 2 herself. Despite service of notice, Opposite Party No. 2 did not choose to appear before the court and after that the matter was heard. Learned counsel appearing for the petitioner challenged the impugned order arguing that no criminal offence is made out and, at best, it is a case of breach of agreement and, therefore, learned court below committed an error in taking cognizance of [STATUTE] . It is further contended by learned counsel for the petitioner that the entire amount in question has already been paid by the petitioner to Opposite Party No. 2 as well as her husband and now the Opposite Party No. 2 has no grievance that is why she has not made her appearance before this Court. In support of his contention, he drew my attention towards Annexure- 2 and Annexure-3 series to the supplementary affidavit. It is further contended by learned counsel for the petitioner that offence under Section 138 of the Negotiable Instrument Act is compoundable in nature and as soon as the Patna High Court Cr.Misc. No.2461 of 2010 (7) dt.28-07-2012 Opposite Party No. 2 accepted the payment made by the petitioner, the case would be deemed to be compromised betw

Applicable IPC Section: 420

Statute Text:
Section 420 of the Indian Penal Code. Cheating and there by dishonestly inducing delivery of property, or the making, alteration or destruction of a valuable security. Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.