IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.1137 of 2008 HARAKCHAND H.JAIN, son of Hastimal Jain, proprietor of M/S. Harakchand & Co., having office at 22/24, Singapore Bidg.,Champa- -gali Cross Lane, Kalbadevi Road, P.S. Kalbadevi Road,Mumbai. ------- -------- Petitioner Versus 1. THE STATE OF BIHAR 2. Javed Alam, son of Mohammed Jamaluddin, M/s Dindayal Trading Company- through M/s Javed Alam Tailoring Material Cloth Material, Jagjivan Market, Gopali Chowk , Ara – at present M/S Danyal Trading Co., Kulharia Complex, 14-B, Ashok Raj Path, P.S. Sultanganj,Patna ------- ----- Opp.Parties ----------- For the petitioner : M/S Umesh Prasad Singh , and Rajiv Ranjan Prasad, Advocate. For the State : Mr. Jharkhandi Upadhaya,A.P.P. For Opp.Party no.2 : Mr. Nawabzada Syed Md.Babar Hayat Quadri, Advocate. ------------ O R D E R The petitioner , who along with another was arrayed as accused in Complaint Case No.415 ( C) of 2007 and only against whom cognizance has been taken for commission of offence under Section 406 and 420 I.P.C. by order dated 5.6.2007 passed by Sri Bharat Tiwary , Judicial Magistrate, Ist Class, Patna has prayed for the quashing of the aforesaid order. One Javed Alam, the complainant, who has been impleaded as Opp. Party no.2 herein , claiming himself to be engaged as tailor and dealing in tailoring and cloth material in the shop running in the name and style of “ M/S Javed Alam Tailoring Materials”, located at Jagjivan Market, Gopali Chowk, Ara and also having got his place of - 2 - business at Kulharia Complex, Ashok Raj Path, Patna where he is doing such business in the name of “M/S Danyal Trading Co.”, filed the aforesaid complaint on 14.2.2007 inter alia alleging that on 13.10.2006 , the petitioner came to his place of business at Patna and presented samples of the products of his Company and a sum of Rs.1,00,000/- was paid by four post-dated cheques in advance and it was orally agreed that the amount would be adjusted after receipt of the products. The cheques were dated 19.10.2006, 21.10.2006, 25.10.2006 and 28.10.2006 drawn on ICICI Bank and each cheque was of the face value of Rs.25, 000/-. It is further alleged that after survey in the market, the quality of the goods of the petitioner’s Company was found to be sub-standard and the complainant telephonically requested the petitioner to stop sending the consignment of goods and that the same could be supplied after approval of other samples thereof. It is also alleged that the petitioner attempted to encash the cheques, but the cheques were dishonoured due to some reason and the petitioner informed about the dishonour of cheques. It is further alleged that one Gopal, a servant of the petitioner, came to the shop of the complainant on 2.12.2006 and received Rs.1000/- towards Bank charges and he assured that he will send back those cheques. Since the petitioner had not returned the cheques nor had sent any material, the complainant was sanguine in his mind that the petitioner intended to cheat him. The case of the petitioner is that he was doing business with Opp.Party no.2 and in course thereof he had received four - 3 - cheques of Rs.25,000/- each as payment for the goods supplied to Opp.Party no.2 at the place of his business in Ara. The invoices numbers and dates have been given and against the total outstanding amount of Rs.1,12,000/-, the payment through those four cheques were adjusted but the said cheques were dishonoured due to insufficient funds in the account of the complainant as reported by the ICICI Bank vide Memo dated 5.12.2006. The petitioner appears to have filed a case under Section 138 of the Negotiable Instruments Act in the court of Metropolitan Magistrate, 23rd Court, Esplanade, Mumbai, in which processes were issued in January, 2007. This complaint was filed after a legal notice dated 15.12.2006 had been sent by the petitioner and was received by the complainant on 22.12.2006. It also appears that the complainant’s reply thereto was sent on 27.1.2007 after service of notice upon him on 23.1.2007 of the complaint case at Mumbai. On this premise, it was sought to be submitted by the learned counsel for the petitioner that the complainant’s case at Patna had been filed by way of after thought and by suppressing and concealing material facts by way of a counter blast to the Mumbai Case. It was also submitted that from perusal of the complaint petition, no offence can be said to have been made out against the petitioner. A counter affidavit has been filed by Opp.Party no.2 which has already sought to raise his defence. From a bare perusal of the complaint petition, it appears that the cheques issued by the complainant had not been encahsed due to - 4 - some reasons and the complainant was well aware of the fact on the date of the filing of the instant complaint petition that a complaint case had already been filed against him at Mumbai for the non-payment of the same cheques due to insufficient funds in his account and this fact had been suppressed and concealed by him in the instant complaint. It is the ordinary speculation that when cheques are issued naturally, they are against payment of some articles purchased, which may be supplied then and there or at a later date. It is also apparent that it was the complainant who had requested the petitioner not to send the articles until proper approval was made. In this situation the complainant cannot take the plea of offences under Sections 406 and 420 I.P.C. having been committed by the petitioner. Apparently, the complainant has not come with clean hands before the Patna court, and as such, the cognizance taken against the petitioner is bad and fit to be quashed. Accordingly, the impugned order taking cognizance against the petitioner is hereby quashed and the application is allowed. ( Abhijit Sinha, J) Patna High Court,Patna Dated : the 7th November,2008 Nawal Kishore Singh/A.F.R.