CRIMINAL MISCELLENEOUS NO. 2730 OF 2006 ***** ( In the matter of application under Section 482 of the Code of Criminal Procedure ) ****** NAKUL PRASAD @ NAKUL PRASAD GUPTA, SON OF LATE AYODHYA PRASAD GUPTA, RESIDENT OF VILLAGE LALAPUR MDER, POLICE STATION KAHALGAON, DISTRICT BHAGALPUR ……….……………….………………………………………….……...PETITIONER VERSUS 1. THE STATE OF BIHAR MD. HASAN IMAM @ SHEKH KHAN, SON OF SYAD IMAM ALI, VILLAGE ENGLISH MOKIMPUR, POLICE STATION SHAHKUND, DISTRICT BHAGALPUR ……………….……………………………..……………………OPPOSITE PARTIES ******************** FOR THE PETITIONER :- MR. JAGANNATH SINGH, ADVOCATE MR. P. K. SINHA, ADVOCATE FOR THE S T A T E :- MR. B. P. SINGH, A.P.P. FOR O.P. NO. 2 :- MR. SHARDA NAND MISHRA, ADVOCATE MR. DHANANJAY KUMAR GUPTA, ADV. ********** P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN O R D E R Sheema Ali Khan, J. Heard Counsel for the petitioner, the A.P.P. appearing on behalf of the State and the Counsel appearing on behalf of Opposite Party No. 2. 2. The petitioner is aggrieved by the order dated 08.05.2003 passed in Complaint Case no. C-0420 of 2002 by which the Judicial Magistrate, 1st Class, Bhagalpur has taken cognizance for the offences under Sections 341, 420 and 504 of the Indian Penal Code. 2 3. The allegation in the complaint petition is that the complainant and the petitioner were the partners of M/s Naaz Enterprises. It is said that a cheque of Rs. 1,34,964/- was issued in favour of the firm by the Finance Department. The allegation is that the petitioner received the cheque but did not deposit the same in the bank account of the firm. After going through the entire complaint petition and specifically paragraph 10 & 11, it appears that the allegation revolves around the fact that the petitioner is said to have kept the cheque with himself and not deposited it into the account of the firm. There is no allegation to indicate that the petitioner had withdrawn the amount or that he had utilized or converted the cheque given to him for his own use. 4. On the basis of the aforesaid allegation, it is submitted that the order taking cognizance under Section 420 of the Indian Penal Code cannot be sustained, in view of the fact that the ingredients of Section 420 of the Indian Penal Code are not made out against the petitioner. 5. Section 415 of the Indian Penal Code envisage that the person should be deceived, the act should be fraudulent and by such inception, the property should be retained by the person concerned in order to damage or harm another person in mind and body. It is apparent 3 that the cheque was in the name of the firm and that both the partners could have got the benefit of the cheque. At the same time, it is apparent that the petitioner had not misutilized or converted the money for his own use. It is also apparent that the cheque had been issued in the name of the firm which had not been deposited in the accounts of the firm, for whatever reason. The Partner aggrieved could have filed an application for re-issuance of a fresh cheque, due to lapse of time. It is admitted position that the cheque was not deposited nor was any money withdrawn by the petitioner from the account of the firm by depositing that cheque. No allegation has been made out under Section 406/409 of the Indian Penal Code which would have substantiated the allegations of misappropriation of money. 3. In the result, I find that no offence is made out under Sections 420 of the Indian Penal Code. Accordingly, the order dated 08.05.2003 passed in Complaint Case No. C-0420 of 2002 is hereby quashed. This application is accordingly allowed. ( Sheema Ali Khan, J. ) PATNA HIGH COURT DATED, THE 01st MARCH, 2011 N.A.F.R./ANAND