IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.6599 of 2008 1. SANTOSH KUMAR PANDEY @ SANTOSH , son of Musafir Panedy. 2. Musafir Pandey, son of Late Bibhishan Pandey. All resident of village – Jigni, P.S. – Sanjhauli, District – Rohtas. ---------------- Petitioners. Versus 1. THE STATE OF BIHAR 2. Gupteshwar Mishra, son of Shivdeep Mishra, resident of village – Durga Dih, P.S. – Bikramganj, District – Rohtas. ------------- Opposite Parties. ***** For the petitioners : Mr. Sakil Ahmad Khan, Sr. Adv. Mr. Rakesh Kumar Sinha, No.1, Adv. Mr. Anuj Prakash, Adv. For the Opp. Party N.2: Mr. Kamal Nayan Choubey, Sr. Adv. Mrs. Sunita Rani Singh, Adv. ***** 04. 30.04.2010 Heard learned counsel for the petitioners, State and Opposite Party. This application has been filed for quashing of the order dated 13.07.2007 passed by Sub-Divisional Judicial Magistrate, Bikramganj, Rohtas, in Complaint Case No. 30 of 2007 for offences under Sections 420, 323, 379, 504 of the Indian Penal Code and 138 of Negotiable Instrument Act and also order dated 11.12.2007 passed by the District and Sessions Judge, Rohtas at Sasaram, in Criminal Revision No. 258 of 2007 affirmed the order of the court below. - 2 - The relevant facts in short is that opposite party no. 2 filed complaint bearing no. 30 of 2007 against the petitioners stating that there was business relationship between the parties with respect to diesel, from time to time the petitioners used to take commodity from his shop on payment of due amount even diesel was supplied also on credit, ultimately, a sum of Rs. 5 lacs was due against the petitioners for payment. And two cheques for Rs. 2,75,000/- and 1,75,000/- were issued respectively on 28.09.2006 and 15.10.2006 by petitioner no. 1. The opposite party complainant when presented the cheques for payment they were bounced on the ground that no such amount is available in the account. Legal notice was sent but, no heed was paid. Subsequently, on 13.01.2007, the complainant went to the house of petitioners for getting payment of the amount due. They not only abused him but also refused to make any payment and also assaulted him, further, snatched his golden chain worth Rs. 20,000/- besides Rs. 2,000/- in cash. Further, the petitioners were associated by some other unknown persons who also along with petitioners assaulted the complainant, and when he informed the police, it - 3 - was advised him to file complaint. The court below on considering the contents of the complaint petition, statement of complainant on Solemn Affirmation followed by other witnesses took cognizance which was challenged before the learned sessions judge, preferred Criminal Revision No. 258 of 2007 and the same was dismissed by order dated 11.12.2007 with a liberty to agitate all the points at the stage of hearing on the point of charge giving rise to this present application. During the course of argument, learned counsel for the petitioners submittd that undisputedly there was business transaction between the parties and petitioner no. 1 issued two cheques in favour of complainant on the respective dates as alleged in the complaint petition but, not for the amount shown in the complaint petition or the cheques rather they were issued for Rs. 75,000/- each. But by making some addition, the complainant opposite party no.2 himself has committed fraud and make himself liable for criminal proceeding. It is also contended that no criminal proceeding is maintainable as in the instance case there was neither any allegation nor any material - 4 - to show that intention of the petitioners was ever to cheat or defraud the complainant opposite party no. 2. Learned counsel further placed reliance on the decisions of Apex Court held in Mosaraf Hossain Khan Vs. Bhagheeratha Engg. Ltd. reported in (2006) 3 S.C.C. 658 and Vir Prakash Sharma Vs. Anil Kumar Agarwal and Another reported in (2007) 7 S.C.C. 373. On the other hand, learned counsel for the opposite party contended that the petitioners have not only issued the cheques for the amount not available in their account to honour the cheque rather when after dishonour of the cheques, legal notice was issued, did not paid any heed and further on demand assaulted the complainant and snatched some cash and article from him with the aid of other unknown person also. On consideration of the materials available and on going through the decisions of the Apex Court, I find that none of these two decisions are applicable in the instant case. The earlier case before the Apex Court mainly with respect to the territorial jurisdiction where as in the later case point in issue was only with respect to dishonour of the cheques - 5 - issued against payment of sum in one time transaction. Whereas in the instant case, transaction between the parties were admittedly continued for several years and subsequently the cheques were issued to make payment of certain dues. At the time of issuing cheque, intention of the petitioners may or may not be to cheat or defraud the complainant. But their subsequent act to assault and snatch the cash and articles of the complainant when he approached them for payment. Their conduct made themselves liable to face the consequences including for their earlier committed wrong, if any. It is also cannot be ignored that as per petitioner’s contention, two cheques were issued only for Rs. 75,000/- each but, in words and figures respectively, one and two lacs have been inserted by the complainant whereas, as per complainant opposite party no. 2, cheques were issued for the amount shown therein. This controversy cannot be decided at the stage of cognizance for the offence. It needs further probe. The materials available in the facts and circumstances of the case - 6 - are incomplete materials, I do not find any reason to interfere with the impugned order. The petitioners are at liberty to agitate their points at appropriate stage before the court below. With this liberty and observation, this application stands disposed of. Rajeev/ (Akhilesh Chandra, J.)