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2000 DIGILAW 1336 (PAT)

Rita Chopra v. State Of Bihar

2000-12-19

S.N.PATHAK

body2000
Judgment 1. This quashing application has been filed seeking quashing of order dated 22nd May 1999 taking cognizance of the case by Judicial Magistrate, 1st Class, Patna, in Gandhi Maidan P.S.Case No. 251 of 1997. 2. Heard. 3. The matrix of the alleged facts, according to the written report of the complainant, Pushpa Gupta, on the basis of which the concerned P.S.Case was instituted, is that the accused petitioner Krishna Murari Chopra and his wife Geeta Chopra, who lived as neighbours of the complainant, in January 1996, came to her house and demanded Rs. 45,000/- as loan. Subsequently after much persuasion, accused petitioners went to the Office of the complainants husband on 29.1.1996 and took Rs. 33,000/- and gave an advance cheque dated 28.4.97 by way of repayment. When this cheque was deposited into the UCO Bank of the complainants Account, the cheque bounced back with endorsement that there was no sufficient amount to the credit of the drawer. Uitimateiy, lawyers notice was served. However the advance money could not be repaid to the complainant. Hence this complaint was filed by the wife of Jayant Kumar. 4. It was submitted before me that under the Negotiable Instrument Act, no cognizance could be taken because the complaint was not filed within the stipulated period of the return of cheque. So the cognizance u/s 138 of N.I.Act was bad. Moreover when the N.I.Act was not applicable to the facts of the case, cognizance u/s 420 I.P.C. was also bad because the Special Act shall prevail over the General Act. Besides that, it was also submitted that petitioner no. 1 was wrongly prosecuted. 5. From the alleged facts, it is apparent that the petitioner allegedly took an advance of Rs. 33,000/- from the husband of the complainant and he failed-to repay the amount and the cheque which he had handed over to the complainants husband was dishonoured. Now the question under the circumstance, is whether the offence was committed only under the N.l. Act and whether it was also committed under the relevant penal sections of the I.P.C. 6. in this connection, before i give my opinion, i would like to refer to a decision reported in 2000(4) SCC 168 on which the petitioners lawyer has heavily relied. However, the facts of the aforesaid case are quite different from the facts of the present case. in this connection, before i give my opinion, i would like to refer to a decision reported in 2000(4) SCC 168 on which the petitioners lawyer has heavily relied. However, the facts of the aforesaid case are quite different from the facts of the present case. in the reported case, the appellants before the Supreme Court had entered into an agreement with the respondent no. 2 for sale of particular piece of land. They had also executed the sale-deed and they had also further executed an indemnity bond in favour of respondent no,2 who was the Secretary of the concerned Society. The respondent Society had paid part of the consideration money by drafts. The appellants had also delivered the possession of the sold property to the respondent Society. Subsequently, the respondent Society handed over three cheques to the appellants towards the payment of rest of the consideration money. The cheques were dishonoured and so the appellants filed an F.I.R. against the respondent and a suit was also filed. As a counter blast to the case filed by the appellants, the respondents filed a complaint case alleging cheating etc. on the ground that the appellants had suppressed the fact that the vended property was shared by so many coparceners for which a partition suit was also pending. The Hon ble Supreme Court held that the cognizance taken on the complaint of the respondent Society u/s 420 and other ancillary Sections of the Indian Penal Code was bad because when the vended property was delivered to the Society, the elements of fraud or cheating or any intention to misappropriate the amount paid by the respondents were lacking in the very case of the complainant. The reported case, therefore, is apparently, contrary to the facts of the present case. Hence, I am of the opinion that this is not at all applicable to the facts of the present case. The learned lawyer for the petitioners also relied on a single judge decision of this Court, reported in 1980 BBCJ 156 . In this reported case, petitioner had received Lottery Tickets worth Rs. 33,364/- from the District Lottery Officer and had paid the amounts by two cheques. The cheques on presentation to the Bank were dishonoured. The learned lawyer for the petitioners also relied on a single judge decision of this Court, reported in 1980 BBCJ 156 . In this reported case, petitioner had received Lottery Tickets worth Rs. 33,364/- from the District Lottery Officer and had paid the amounts by two cheques. The cheques on presentation to the Bank were dishonoured. The Honble single Judge held that dishonour of the cheques did not disclose any element of inducement or fraud and, hence, it was simply a breaking of promise and not an offence u/s 420 I.P.C. The facts of the case, in the reported decision, cannot be compared with the facts of the present case. Therefore, I do not find myself in agreement with the decision of the learned single Judge in the aforesaid decision. 7. The facts of this case, can, therefore, be clearly distinguished from the facts of the aforesaid two decisions and from the averments of the written report of the complainant it is apparent that it was a simple case of advance of loan and its non-payment. Such cases will give rise to civil as also criminal liability. So if cognizance under the N.I.Act was bad on account of non-filing of the case within the stipulated period, if it was so, I am of the considered opinion that application of sections 420 and 406 of the I.P.C. was clear because petitioner no. 2 had given cheque to the creditor by issuing a cheque which was likely to be dishonoured. Non-payment up-to-date of the concerned loan is also an act which can be denied or established by evidence to be adduced on behalf of petitioners. So the decisions on which the petitioners lawyer based his submission to the effect that when the N.I.Act is not applicable, the penal provisions of I.P.C. are not applicable does not support his contention. 8. In the result, I am of the opinion that the cognizance taken by the impugned order was not bad, so far applications (sic) I.P.C. is concerned. The cognizance is taken of a case and not under any particular penal Section of any Act or the Penal Code. It is for the trial court to decide as to what section of any penal code or Act an accused is to be prosecuted. So far petitioner no. The cognizance is taken of a case and not under any particular penal Section of any Act or the Penal Code. It is for the trial court to decide as to what section of any penal code or Act an accused is to be prosecuted. So far petitioner no. 1 is concerned, of course, there was allegation in the written report on which F.I.R. dated 2.12.1997 was drawn up (Annexure-1) which referred to the statement that both the petitioners had approached for advance of loan, but it was Krishna Murari Chopra who went to the Office of the complainants husband on 29.1.1996 and received Rs. 33,000/- from him along with advance cheque. So I am of the opinion that the prosecution of petitioner no. 1 Rita Chopra was unnecessary. 9. in the result, the cognizance taken against petitioner no. 1 Rita Chopra is quashed and this Misc. case is allowed in part; and the cognizance taken against petitioner no. 2 Krishna Murari Chopra shall stand and the trial against him shall alcso proceed.