Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.1774 of 2010 ====================================================== Dr.Guru Dayal Kumar Sinha S/O Late Dr M.Dayal Medical Officer Primary Health Centre Sonbarsa,Block,P.S.-Sonbarsa,Dist.-Sitamarhi.. Petitioner/s Versus 1. The State Of Bihar 2. Allahabad Bank,University Branch,Ashok Raj Path,P.S.Pirbahore,Town & Dist.-Patna,Through The Chief Manager,Shri Samir Kanti Saha, S/O Late Narayan Chandra Saha. .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. Surendra Mishra, Advocate Mr. Dineshwar Mishra, Advocate For the State : Mr. Nityanand, A.P.P. For the Opposite Party no.2: Mr. Shatrudhan Prasad, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA ORAL ORDER 4 27-06-2012 Heard learned counsel for the petitioner, learned Addl. P.P. appearing on behalf of the State as also learned counsel appearing on behalf of the opposite party no. 2. The petitioner, being aggrieved by the order dated 11.12.2009 passed in Complaint Case No. 1096 (C )/2008 by learned Judicial Magistrate, 1st Class, Patna, refusing to discharge the petitioner from a criminal prosecution under [STATUTE] . and under section 138 N. I. Act, has preferred the present application under section 482 of the Code of Criminal Procedure. A petition of complaint has been filed by the opposite party no. 2 against the petitioner making allegation that a loan amount of Rs. 2, 50,000/- was sanctioned by Bank in favour of the petitioner on execution of required documents and, Patna High Court Cr.Misc. No.1774 of 2010 (4) dt.27-06-2012 2/3 thereafter, aforesaid loan amount was released in favour of the petitioner. The petitioner is alleged to have given certain post dated cheques for return of the loan amount in instalment. When the cheque issued by the petitioner for the purpose of return of the loan amount was produced, the same was dishonoured and was returned with a remark ‘fund insufficient’. The opposite party no. 2, therefore, has made an allegation that petitioner has cheated the bank and has committed offence punishable under Indian Penal Code as also under section 138 of the Negotiable Instrument Act. After enquiry under section 202 Cr. P.C. process was issued against the accused person and prima facie case under [STATUTE] as also under section 138 of the Negotiable Instrument Act was found. Subsequently, for the purpose of discharge, a petition was filed on behalf of the petitioner under section 245 of the Cr. P .C. Learned Judicial Magistrate, on the basis of the materials available on record, recorded a finding of fact that there is sufficient material for proceeding further against the petitioner, and, thereafter, has rejected the prayer made on behalf of the petitioner and fixed the case for framing of charges against the petitioner. Learned counsel for the petitioner has strenuously argued the matter and has submitted that the cheque, which is Patna High Court Cr.Misc. No.1774 of 2010 (4) dt.27-06-2012 3/3 alleged to have given by the petitioner, was actually not given by him and was rather retained by the Bank itself purported to have been issued by the petitioner. Referring to the agreement executed by the parties, he submits that no criminal offence is made out against the petitioner, as it is a case of civil nature, and therefore, the petitioner ought to be discharged from the criminal prosecution by the learned Judicial Magistrate. Learned Addl. P.P. appearing on behalf of the State as also learned counsel appearing on behalf of opposite party no.2 has supported the impugned order. After having heard the parties at length, this Court is of the considered opinion that on the basis of the disputed documents and materials produced by the parties, the prayer for discharge cannot be allowed. The issue raised by the petitioner is required to be tested during the course of trial and for that witnesses are required to be examined. This Court does not find any legal infirmity in the impugned order dated 11.12.2009 passed by the learned Judicial Magistrate, 1st Class, Patna Consequently, the application fails and is, accordingly, dismissed. RPS/- (Birendra Prasad Verma, J)

Applicable IPC Section: 418

Statute Text:
Section 418 of the Indian Penal Code. Cheating a person whose interest the offender was bound, either by law or by legal contract, to protect. Whoever cheats with the knowledge that he is likely thereby to cause wrongful loss to a person whose interest in the transaction to which the cheating relates, he was bound either by law, or by legal contract, to protect, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.