IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.1377 of 2007 AJAY KUMAR SINGH S/O SHATRUGHNA SINGH 101 A, ASIANA PLAZA, BUDH MARG, P.S. KOTWALI, DIST. PATNA-800001 --- PETITIONER Versus 1. STATE OF BIHAR 2. NIRAJ CHANDRAYAVI S/O NAWAL KISHORE PRASAD 3. MONIKA CHANDRAYAVI W/O NIRAJ CHANDRAYAVI 4. UDAY KUMAR S/O NAWAL KISHORE PRASAD 5. SUBHASH KUMAR S/O LATE KRISHNA BHAGWAN 6. M/S BARKHA INVESTMENT, R/O AT 404, ASIANA PLAZA, BUDH MARG, P.S. KOTWALI, DIST. PATNA AND SERIAL NOS. 2 TO 4 ARE RESIDING AT PRANAV MANSION APARTMENT, PARK ROAD, DALDALI, P.S. GANDHI MAINDAN, DIST. PATNA. --- OPP.PARTIES. For the Petitioner : Mr.Jagdish Prasad Singh, Advocate. For the State : Mr. S.K.Singh, APP For the Opp.Party no.2: Mr. Sudhir Kumar, Advocate. For the Opp.Party no.3: Mr.Sanjay Prasad, Advocate. For the Opp.Party no.4: Mr. Anjani Kumar Sinha, Advocate. ----------- 04. 05.08.2010 Heard learned counsel for the petitioner, State and opposite parties. Complainant/petitioner is raising a grievance with respect to the order dated 18.08.2007, passed by learned Judicial Magistrate Ist Class, Patna in case no. 1373 ( C) of 2007. By the said order, learned Magistrate, on a perusal of the materials on record including the complaint, statement of the complainant on S.A., and the evidence of the enquiry witnesses has come to the conclusion that a prima facie case under Section 418 of the Penal Code and Section 138 of the N.I. Act has been made out against one of the accuseds, cited in the complaint. Accordingly summons have been directed to be issued. A brief background of the case may first be indicated. 2 Complainant in his complaint has averred that accused Niraj Chandrayavi was a broker registered under the Magadh Stock Exchange at Patna. In the year 2005, the Complainant joined him as Sub Broker. He was allotted I.S.E. Code no. 9002. It is further the case of the complainant that a sum of Rs. 1, 50,000/- was got deposited as a security money with the company of which accused Niraj Chandrayavi was the owner. In the year 2006, the complainant demanded the account statement. It is the complainant’s case that the same was provided to the complainant in October 2006. Having found the business not much lucrative, the complainant closed his dealings with the said company w.e.f. 23.11.2006. It is the complainant’s case that he had share worth Rs.26, 50,000/- in the account as per the statement and he demanded the said amount to be returned back to him. It is the complainant’s case that the accused did not return the said amount as also the security deposit which was paid as security amount at the time of initiation of his dealings with the accused as the Sub Broker. Learned Magistrate, on a consideration of the materials on record, has found that the instant case had been filed for recovery of money which was, according to complainant, due to be replenished by accused Niraj Chandrayavi who was the owner of the company called M/S Barkha Investment which used to deal in the stock business. Learned Magistrate has observed in the order that dispute pristinely relate to financial transaction in a business which, on the face of it, cannot constitute a criminal liability or an offence punishable under Section 420 of the Penal Code. He has, 3 however, taken a view that having regard to the allegations contained in the complaint the accused no.1 (owner of Barkha Investment) was duty bound to safe guard the interest of the complainant who was working under him as Sub Broker. Accordingly, it has been found that a prima facie case under Section 418 of the Penal Code has been made out. Learned Magistrate, however, on the strength of the materials reflecting from the record, has also taken cognizance under Section 138 of the N.I. Act, as it was found that a cheque dated 13.01.2006 of Rs. two lac was signed by accused Niraj Chandrayavi in favour of the complainant which had bounced. Learned counsel for the petitioner while assailing the impugned order submits that the reasonings of the Court below is/are not sound. The complainant has made out a case of cheating as in spite of demand the accused had not replenished the loss sustained by him. It is also the case of the complainant that without the consent of the complainant the name and style of the company was changed. It is next contended that the complainant has not averred and made out a case under the N.I. Act. It is, thus, contended that the order suffers from complete non application of mind and needs to be interfered with. On the other hand, learned counsel appearing on behalf of the complainant submits that learned Magistrate has gone by the averments made in the complaint itself in order to come to the conclusion that a prima facie case under Section 418 of the Penal Code has been made out against one of the accuseds 4 cited in the complaint. It is submitted that on the basis of the materials brought on record in course of enquiry made under Section 202 of the Code of Criminal Procedure, it has been found that the accused was also prima facie guilty of offence punishable under Section 138 of the N.I. Act and accordingly cognizance has been taken. Learned counsel further highlights that the complainant shall have opportunity to approach the Court by invoking provision contained under Section 216 of the Code of Criminal Procedure if during trial it is found that the accused had committed the offence other than the one for which the cognizance has been taken. I have considered the submissions advanced on behalf of the parties and perused the materials on record. Learned Magistrate has applied his judicial mind and on the strength of the averments made in the complaint it has been found and held that prima facie a case under Section 418 of the Penal Code is made out. This Court does not find any patent illegality in the order meriting interference. It is, accordingly, dismissed. Sym ( Kishore K. Mandal, J.)