IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.4365 of 2011 AWADHESH KUMAR s/o late Lallan Prasad Sharma, resident of village- Sheoganj Mor, house no. 237 P.S. –Ara (Town), District- Bhojpur. Versus THE STATE OF BIHAR ----------- 7 23.3.2011 The petitioner is in custody in relation to Ara (Town) P.S.Case no. 177 of 2008 instituted under Sections 406,420 and 120(B) IPC read with Section 138 of Negotiable Instrument Act. The informant has appeared, filed counter affidavit and has been heard at length. In substance, the allegation on behalf of the informant is that the petitioner owns certain land and he wanted to develop it by constructing building thereon .He has no means to finance it himself. Petitioner accordingly entered into a development agreement with the informant whereby the informant undertook to construct the building and receive payments in part depending upon the progress of the construction. From time to time there were agreements signed in relation to payment . It is not in dispute that the petitioner had defaulted in his commitment, It came to a situation wherein the petitioner issued three cheques worth about Rs. 28 lakhs in favour of the informant-company, which bounced . This ultimately led to the institution of the present case. On behalf of the informant it is brought to the notice of this Court that while the petitioner was seeking anticipatory bail before this Court, the petitioner was given ample 2 opportunity to make payment of the cheque amount. He could only make payment of small amount and as such anticipatory bail of the petitioner was dismissed by this Court. On behalf of the petitioner it is submitted that the petitioner has already surrendered to the jurisdiction of this Court and is in custody since 18.12.2010 . The petitioner, it is not in dispute, is 70 percent handicapped specially in relation to both his legs inasmuch as he could not attend his daily chores by himself. It is further submitted on behalf of the petitioner that , in fact, if proper accounts are settled taking into account the work already done by the informant , the payment already made would be sufficient and he submits that even after his arrest in the present case he has further made payment of Rs. 4.50 lakhs. On the other hand, learned counsel for the informant says that the payment made is grossly insufficient. On behalf of the petitioner it is submitted that these are matters of accounts and/or agreements which are essentially civil dispute.They need to be settled across the table rather than leaving the petitioner behind the bar. Having considered the matter, in my view, in view of the provisions as contained in Negotiable Instrument Act, the petitioner would have to face the presumption but that does not affect the fact that the cheque issued by the petitioner has not been bounced. Considering the fact , on petitioner’s depositing a further amount of rupees two lakhs in favour of the informant- 3 company, the petitioner would be released, subject to the condition that both the parties would then get constructed area properly measured and settled the accounts, so that the time of the Court may not be wasted any further. Subject to the aforesaid, above named petitioner shall be released on bail on furnishing bail bond of Rs. 10,000/- (ten thousand) with two sureties of the like amount each to the satisfaction of Chief Judicial Magistrate, Bhojpur at Ara in Ara (Town) P.S.Case no. 177/2008. Singh ( Navaniti Prasad Singh, J.)