CRIMINAL MISCELLANEOUS No.12095 OF 2002 (IN THE MATTER OF AN APPLICATION UNDER SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE) ------------- INDIRA KUMARI, W/O RAMJEE PRASAD, RESIDENT OF PAHARPUR, P.O.- ANISABAD, DISTRICT – PATNA --------------------PETITIONER VERSUS ANURAG KUMAR, S/O SRI CHANDI SINGH, RESIDENT OF OFFICER’S FLAT 95/40 BAILEY ROAD, P.S. SHASTRI NAGAR, DISTRICT – PATNA -----------OPPOSITE PARTY ------------------ FOR THE PETITIONER: SRI T.N. MALTINE, SR. ADVOCATE SRI AKHILESH KUMAR SINHA FOR THE OPPOSITE PARTY: SRI ASHOK KUMAR SRI AMARESH KUMAR FOR THE STATE: SMT. INDU BALA PANDEY ----------- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR Rakesh Kumar, J. The sole petitioner, invoking inherent jurisdiction of the Court under Section 482 of the Code of Criminal Procedure, has prayed for quashing of an order dated 24.11.2000, passed by Sri Vibhakar Dubey, learned Judicial Magistrate 1st Class, Patna, in Complaint Case No. 1202(C) of 2000, whereby, the learned Magistrate has taken cognizance of offence under Section 138 of the Negotiable Instrument Act and directed for summoning the petitioner to face the trial. 2. Short fact of the case is that, the Opposite 2 Party No. 2 filed a complaint in the court of Chief Judicial Magistrate, Patna vide Complaint Case No. 1202(C) of 2000 arraying therein the petitioner and her husband as accused for commission of offence under Sections 120B, 420 of the Indian Penal Code and Section 138 of the Negotiable Instrument Act 1881. It was alleged by the complaint that an agreement was executed between complainant and the husband of the petitioner on 31.3.2000 for opening Sidhi Vinayak Dal Mill on the land of petitioner’s husband situated at Paharpur area, P.S.- Gardanibagh, Patna, for which a sum of Rs. 10,800 was paid in advance, and a sum of Rs. 17,815/- was given to the petitioner’s husband on the same day for erecting / constructing shed on the land. The said land was to be given to the complainant by the husband of the petitioner on the monthly rent of Rs. 2,100/-. The complainant in advance paid Rs. 10,800/- to the husband of the petitioner on 31.3.2000. Thereafter, he further paid Rs. 17,815/- for constructing shed over the land in question on the same day i.e. 31.3.2000 as per agreement. While the complainant approached the electricity office for electric connection, he came to know that in the name of husband of the petitioner electric bill was due which was not cleared by the accused. It was also informed that, unless 3 outstanding bills are cleared by the husband of the petitioner, connection in the name of any other person shall not be provided. When the complainant failed to get electric connection, which was condition precedent, for starting the mill over the land in question, he withdrew his intention to open the mill over the land. Before taking electric connection, the complainant had also installed the machinery. Subsequently, the complainant informed the accused persons regarding dropping the idea and demanded Rs. 10,000/- as compensation for the loss suffered by him in installing and removing the same, also advance of Rs. 10,800/- and Rs. 17,815/- which was given to Opposite Party No. 2 for constructing shed etc. Thereafter, the accused no. 2 i.e. husband of the petitioner refunded Rs. 21,000/- in cash, and gave a Cheque of Rs. 17,615/- drawn on the State Bank of India, Gandhi Maidan Branch, on 20.5.2000. It was a post dated Cheque of 1.6.2000. It was further disclosed by the complainant, that he submitted the Cheque in his account of United Bank of India, Bar Council Branch, Patna on 31.5.2000. However, on 5.6.2000 he received information from the Bank regarding dishonour of the Cheque and Cheque was returned to him. After that, the complainant was examined on S.A., and in support of the complaint, four witnesses were examined. By the 4 impugned order dated 24.1.2000 the learned Judicial Magistrate 1st Class, Patna took cognizance of offence under Section 138 of the Indian Penal Code and summoned only the petitioner. 3. Aggrieved with the order of cognizance, the petitioner approached this court by filing the present petition on 3.12.2002. While issuing notice to Opposite Party this court directed that, in the meantime, further proceeding in the Complaint Case No. 1202 (C) of 2000 pending in the court of Judicial Magistrate 1st Class, Patna shall remain stayed. Thereafter, lower court record was called for, which was received, and finally on 16.4.2004, the case was admitted for hearing and it was directed that during the pendency of this application, the interim order passed on 3.12.2002 shall remain operative. The order of stay is still continuing. 4. Sri T.N. Maltine, learned senior counsel appearing on behalf of the petitioner has argued that, the learned Magistrate has completely failed to appreciate that in any event, the petitioner had committed no offence. It was submitted that from the complaint petition itself, it is evident that the complainant had entered into an agreement with the husband of the petitioner, and some advance payment was made by him to the husband of the petitioner. 5 Anyhow, due to some unavoidable circumstances, the agreement for lease came to an end, and on demand made by the complainant, the husband of the complainant on the same date had refunded major portion of the advance money and thereafter, 2 installments of the payments were made. However, a Cheque signed by the petitioner, for an amount of Rs. 17,615/-, was given to the complainant by husband of the petitioner who was made accused no. 2 in the complaint petition. The said Cheque was dated 1.6.2000. It was a post dated Cheque. The complainant himself admits that it was post dated Cheque of 1.6.2000 and even after knowing the fact that on the date of presentation, there was possibility of insufficient fund, the complainant presented the same on 31.5.2000 which has been admitted in paragraph 6 of the complaint petition. It was on this score alone, the complainant was not entitled to proceed with the complaint case. It was further submitted that for application of Section 138 of the Negotiable Instrument Act, it is must to establish that the Cheque amount was for the discharge in whole or any part of any debt or liability. In the present case, it was submitted by Sri Maltine, that the petitioner had got no connection with the complainant and nothing was outstanding with the petitioner and as such, in the 6 present case, Section 138 of the Negotiable Instrument Act, 1981 was not at all applicable. It has also been submitted that, the notice as prescribed under the Act was not given within 15 days as per Section 138(b), and on this ground also, the order of cognizance is liable to be set aside. 5. Sri Ashok Kumar, learned counsel for the Opposite Party No. 2, has opposed the prayer of the petitioner. He has also referred to averments made in the counter affidavit and refuted the contention of the petitioner. It was submitted by learned counsel for the Opposite Party No. 2 that the learned Magistrate has rightly passed the impugned order. 6. Smt. Indu Bala Pandey, learned Additional Public Prosecutor has appeared on behalf of the State. 7. Besides hearing learned counsel for the parties, I have also perused the materials available on record. It is evident from the complaint petition itself, that the petitioner was not at all in picture, while agreement was entered in between the complainant and her husband. Moreover, from the facts stated in the complaint petition itself, it is evident that, agreement for lease was entered in between husband and the complainant in which the husband of the petitioner had agreed to let out his land in favour of the complainant on 7 monthly rental basis, and for which, an advance payment was made, and further certain amount was paid for constructing shed over the land. The complainant, thereafter, approached for electric connection, and he found that, certain amount of electricity bill was outstanding, and as such, he felt difficulty in getting electric connection, and as such, he himself withdrew his proposal for agreement. Complainant has also admitted that immediately when he approached the husband of the petitioner for refund of the amount, major portion of the amount was refunded by her husband, and thereafter, a Cheque for an amount of Rs. 17,615 dated 1.6.2000, which was post dated, was given to the complainant. The Cheque was signed by the petitioner. The complainant after knowing fully well that the Cheque was dated 1.6.2000 presented the same on 31.5.2000. Fact remains that nothing was outstanding against the petitioner, nor the Cheque amount was proposed to clearing her own dues, and as such, the court is in agreement with the submission of Sri T.N. Maltine, that the case under Section 138 of the Negotiable Instrument Act, 1981, so far as, petitioner is concerned was not sustainable. 8. Accordingly, the court is of the opinion that, it is a fit case for interference with the order of 8 cognizance, and as such, order of cognizance dated 24.11.2000 passed by Sri Vibhakar Dubey, learned Judicial Magistrate 1st Class, Patna in Complaint Case No. 1202(C) of 2000, is hereby, set aside and petition stands allowed. Patna High Court, Patna Dated 4th of February, 2011 Praful/N.A.F.R. ( Rakesh Kumar, J.)