IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.25879 of 2005 BIRENDRA KUMAR SINGH, SON OF LATE RAGHU NANDAN SINGH, RESIDENT OF HOTEL SHISMAHAL, RIVER SIDE ROAD, P.S. KOTWALI, DISTRICT GAYA. ----- PETITIONER Versus 1. THE STATE OF BIHAR 2. GAYATRI PRASAD AGRAWAL, SON OF LATE MADAN MOHAN LAL AGRAWAL, RESIDENT OF SARDAR BALLABH BHAI PATEL ROAD, P.S. KOTWALI, DISTRICT GAYA. ----- OPPOSITE PARTIES For the petitioner :- Mr. Ashwani Kr. Singh, Sr. Advocate Mr. Jai Prakash Singh, Advocate Mr. Pankaj Kr. Singh, Advocate For the opposite party :- Mr. Shivendra Prasad, Advocate ----------- 6 23.4.2010 A modification application was filed by the complainant- opposite party for modifying the order dated 17.1.2007, passed in Cr. Misc. No. 25879 of 2005. This Court issued notice as certain documents had in a bonafide manner wrongly been annexed in Cr. Misc. No. 25879 of 2005 and as such is hearing the matter afresh. This quashing application has been filed to set aside the order dated 9.6.2005, passed in Trial No. 1023 of 2005 by the Judicial Magistrate, Gaya refusing to discharge the petitioner for offences under Section 138 of the Negotiable Instrument Act. The question that has been raised in this case is that there was no legal liability on the petitioner to pay the amount mentioned in the cheques. The prosecution case in short is that on 5.4.2002, Gayatri Prasad Agrawal has filed a case alleging that one Daud Dayal Agrawal who was a common friend of the petitioner and the informant requested the informant for a friendly loan of Rs. 1,00,000/-. The complainant handed over the said amount. In May, 2000 a deed was prepared which was duly signed by Daud Dayal Agrawal and his wife Usha Rani 2 Agrawal regarding the payment of the advance and the return of the loan. Daud Dayal Agrawal died in June, 2001 leaving behind his wife Usha Rani Agrawal. Usha Rani Agrawal proposed to sell her residential house bearing holding no. 141 situated at Mohalla River side Road, Rai Saheb Gate, P.S. Kotwali, Gaya which was situated just in front of the hotel Shishmahal which belonged to the petitioner. The petitioner accepted the proposal to purchase the house for a sum of Rs. 5,00,000/- and Rs. 1,00,000/- was to be paid by way of advance. After payment of the advance money the petitioner is said to have issued four post dated cheques of the Central Bank of India. In the mean time, petitioner paid Rs. 25,000/- in cash and took back one cheque dated 20.8.2001. It is alleged that the cheques were presented in the Bank but was dishonoured due to insufficient fund. It is also alleged that the petitioner has taken possession of the house. The original complaint case was registered as a First Information Report and after investigation a final report dated 3.5.2003 was submitted showing that there was insufficient evidence to send the petitioner up for trial. The Chief Judicial Magistrate differed with the police report and took cognizance under Section 138 of the Negotiable Instrument Act. The case of the petitioner on the other hand is that the informant dealt with electrical goods and had undertaken to replace the wiring of the petitioner’s hotel for which he had given an estimate of Rs. 1,00,000/-. The petitioner had advanced him Rs. 25,000/- in cash and given him post dated cheques for purchase of the electrical goods. It is 3 said that the petitioner on learning that no steps have been taken for purchase of electric fittings stopped payment at the Bank and information regarding this was also sent to the informant. The petitioner also lodged a case on 1.4.2002. It has also come on record that one Meena Agrawal, wife of Sri Rajendra Agrawal filed a Title Partition Suit 98 of 2006 / 199 of 2001 in which Usha Devi Agrawal was made the sole defendant. Meena Agrawal was claiming to be the sole heir of late Daud Dayal Agrawal to the exclusion of the defendant. The suit was decreed in favour of Meena Agrawal on 16.3.2007. The said Meena Agrawal executed a sale deed in favour of Smt. Supriti Kumari, wife of Sri Vikas Kumar Singh for a sum of Rs. 2,32,000/-. This very house is the subject matter of the complaint wherein the informant had stated that the petitioner had issued post dated cheques for sale of the said house. The contention on behalf of the petitioner is that there could not have been any agreement or advance paid by the informant/petitioner for sale of a house which did not belong to them and which was declared to be the property of Usha Devi Agrawal by a Title Partition Suit. On the basis of the aforesaid fact, it is submitted that there is no legal liability fastened on the petitioner to make payment of the cheques and for this purpose the petitioner had filed a complaint case against the informant much prior to the filing of the complaint case which was filed on 18.5.2002. It is submitted that in view of the aforesaid facts, no offence is made out under Section 138 of the Negotiable Instrument Act. 4 Considering the judgment in the title suit in favour of Usha Devi Agarwal, and the reasons given for issuing the cheque in the purchase of a property, it cannot be held that the cheques in question were in fact not for the purpose of buying the property. It is also apparent that the petitioner had filed a case against the husband for not supplying the electric wire and due to non-supply of the wires etc., the petitioner stopped payment and also filed a case. As such, this court cannot hold that an offence is made out against the petitioner under section 138 of the Negotiable Instrument Act. The institution of the case is malafide and in order to protect the complainant from prosecution. This application is allowed and the impugned order, dated 17.1.2007 is quashed. Sanjay (Sheema Ali Khan, J.)