Abhay Kumar & Anr vs State Of Bihar & Anr on 4 August, 2017

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Miscellaneous No.46953 of 2013

Arising Out of PS.Case No. -1022 Year- 2010 Thana -PATNA COMPLAINT CASE
District- PATNA

1. Abhay Kumar Son Of Sri Yadubansh Pathak R/O 4m/45,
M.I.G., Bahadurpur Housing Colony, P.S.-Agamkuan, Distt-
Patna

2. Smt Puja Tripathi D/O Late Saryug Prasad Tripathi R/O 4m/45,
M.I.G., Bahadurpur Housing Colony, P.S.-Agamkuan, Distt-
Patna
…. …. Petitioners
Versus

1. The State Of Bihar

2. Ramesh Prasad Singh Son Of Ramaswarath Singh R/O At –
Paschim Darwaza, Near Oriental College, P.S.-Khazekala, Distt-
Patna
…. …. Opposite Party

Appearance :

For the Petitioners : Mr. Pawan Kumar, Advocate
For the O.P. No.2 : None.
For the State : None.

CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
ORAL JUDGMENT
Date: 04-08-2017

Heard learned counsel for the petitioners.

No one appears on behalf of the opposite party no. 2.

As usual, State is also not represented.

The petitioners, in the present case, are

seeking quashing of the entire criminal proceeding

including the order dated 03.09.2010 passed in

Complaint Case No. 1022(C) of 2010 by learned

Judicial Magistrate, 1st Class, Patna, whereby the

learned Judicial Magistrate has taken cognizance of the

offences under Sections 406, 120(B) of the Indian Penal
Patna High Court Cr.Misc. No.46953 of 2013 dt.04-08-2017

2

Code read with Section 138 of the Negotiable

Instrument Act.

A perusal of the complaint petition would

show that, according to the complainant, he had given

a sum of Rs. 10,00,000/- (Rs. Ten lacs) to the accused

persons on the assurance that the complainant will get

READ  Paparambaka Rosamma & Ors vs State Of Andhra Pradesh on 13 September, 1999

franchise company shares within a period of 2 to 3

months. However, the accused persons did not provide

that franchise shares and when the complainant

demanded his money a cheque bearing no. 565019

dated 19.02.2010 drawn on State Bank of India, Netaji

Subhash Place, New Delhi Branch in the name of the

complainant was handed over to him. It is the claim of

the complainant that the said cheque stood dishonored

on the presentation on the ground that the signature of

the drawer differs. Thereafter, a legal notice is said to

have been issued to the accused on 20.03.2010 which

was not replied, thereafter he filed the present

complaint case against the accused persons, in which

cognizance, under Section 406 I.P.C. read with Section

138 of the Negotiable Instrument Act, has been taken

by the learned Judicial Magistrate, 1st Class, Patna and

summons have been issued to the present petitioners.
Patna High Court Cr.Misc. No.46953 of 2013 dt.04-08-2017

3

Learned counsel for the petitioners

submitted that from the allegation made in the

complaint petition no offence under Section 406 I.P.C.

is made out, because the money was given to him, even

if assumes to have been given by way of entrustment, it

was for business purposes. It is further submitted by

learned counsel for the petitioners that petitioner no. 1

lost his bag containing the cheque sometimes back and

a sanha in this regard was also recorded with a police

station, it is one of those cheques which has been used

by the complainant by forging signature of the

READ  Beere Gowda vs State Of Karnataka on 28 July, 2010

petitioner no. 1. He would further submit that

admittedly there is no agreement suggesting any

business to be carried on between the complainant and

the accused persons.

Having heard learned counsel for the

petitioners and upon perusal of the record, this Court

finds that the submission of the learned counsel for the

petitioners are in the nature of a defence to rebut the

presumption of law as contained in Section 139 of the

Negotiable Instrument Act. Whether the cheque

contains a forged signature or that it was got

misutilized by the complainant are the pure questions
Patna High Court Cr.Misc. No.46953 of 2013 dt.04-08-2017

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of facts which can be gone into only by a fact finding

court. In the present case, it will be the trial court. This

Court, sitting in its jurisdiction under Section 482

Cr.P.C., cannot assume the rule of a fact finding court

and shall not examine the merit of the allegations. The

petitioners can, if so advised, take all such steps in

accordance with law, which are available to them at the

time of framing of charge.

This application stands dismissed in the

present circumstances.

(Rajeev Ranjan Prasad, J.)

Rajeev/-

AFR/NAFR NAFR
CAV DATE N.A.
Uploading 07.08.2017
Date
Transmission 07.08.2017
Date

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