IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.37479 of 2007 1. POONAM CHAUDHARY WIFE OF VIJAY KUMAR CHAUDHARY 2. RAMESH CHAN DRA CHAUDHARY, SON OF LATE SURAJ NARAYAN CHAUDHARY, BOTH ARE RESIDENT IN MOHALLA-AMLA TOLA P.S. SADAR TOWN, DISTRICT- KATIHAR ------- PETITIONERS Versus 1. THE STATE OF BIHAR 2. LALLAN KUMAR BARNWAL, SON OF SRI ARJUN PRASAD RESIDENT OF C/O SRI RAJANDHARI SINGH, NEAR ARBIND MAHILA COLLEGE, P.S. KADAMKUAN, DISTRICT-PATNA ------- OPP.PARTIES ----------- 4 02-12-2008 Heard Mr. Uday Kumar, the learned counsel for the petitioners as also Mr.Jharkhandi Upadhaya, the learned A.P.P. for the State and Mr. Kripa Nath Yadav, the learned counsel for Opp.Party no.2. This application by two of the four named accused of complaint case no.346 (C ) of 2006, is for the quashing of the order dated 23.12.2006 passed therein by Sri B.K. Chaudhary, Judicial Magistrate, Patna whereby he has taken cognizance against all the four accused, including these petitioners, for offences under Sections 406,420,120B I.P.C. and Section 138 of the Negotiable Instruments Act ( hereinafter referred to as “ the N.I.Act”). According to the complainant, impleaded as Opp.Party no.2 herein, he runs a business of distribution of medicines in the State of Bihar whereas the accused persons look after a similar business in the District of Katihar. It is said that accused nos.1 and 2 are the partners - 2 - of accused no.4, a firm running in the name and style of “M/S Poonam Distributor” and accused no.4 is its staff. It is stated that in the first week of January,2005, accused nos.2 and 3 approached the complainant at his residence and placed the desire for Rs.20 lacs on credit basis for purchasing medicines from different Companies. Accordingly, an agreement was executed between the complainant and the accused on 10.1.2005 in presence of witnesses and accused submitted 8 post-dated cheques of Indian Overseas Bank, Katihar Branch in favour of the complainant. A sum of Rs. Seventeen lacs and fifty thousand was handed over by the complainant to the accused nos.1 and 2 in front of witnesses. It is alleged that accused no.2 had assured to repay the borrowed amount on instalment basis but when the first instalment was not paid, the complainant approached accused no.2 demanding payment and was assured of the payment being made within a week. The instalments not having been paid accused no.2 along with his wife, accused no.1 approached the complainant and handed over a cheque in October, 2006 for Rs.5, 10,000/- which on presentation for encashment bounced due to insufficiency of funds. Several requests for repayment, both oral and by letters, evinced no response and the amount remained unpaid. The submission on behalf of the petitioners is that petitioners had no role to play in the transaction and petitioner no.1 had only accompanied her husband, accused no.2, at the time of taking loan and payment of cheque on October, 2006.Even, the agreement was between the complainant and accused no.2 and the firm was not a - 3 - party to the agreement. The cheques were also issued by accused no.2 and neither of the petitioners had any role to play. No entrustment of property was made to any of the petitioners. In the aforesaid circumstances the prosecution of the two petitioners herein appears to be an abuse of the process of the court. Accordingly, the impugned order so far as the petitioners are concerned, is hereby quashed and the application is allowed. ( Abhijit Sinha, J ) NKS/-