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2012 DIGILAW 718 (PAT)

Ghanshyam Nayak v. State of Bihar

2012-05-03

RAKESH KUMAR

body2012
ORDER Heard Md. Shahnawaz Ali, learned counsel for the petitioner and Shri Hirday Prasad Singh, learned Additional Public Prosecutor. 2. The present petition has been filed by the sole petitioner for quashing an order dated 15.12.2009 passed in C.R. No.996 of 2009, T.R. No.2411 of 2010. By the said order, the learned Judicial Magistrate has taken cognizance of offence under Sections 406 and 420 of the Indian Penal Code. 3. Learned counsel for the petitioner, at the very outset, has argued that since it was a case of dis-honour of a cheque it was required on the part of the complainant to firstly give notice to the petitioner for clearing the dues and non compliance of service of notice was sufficient to reject the complaint petition. He submits that if special act provides for a special procedure, then in that event, ignoring the special act, general law should not be applied. He has further submitted that regarding loss of cheque, petitioner had already intimated the Officer Incharge of Town Police Station, Madhubani vide Annexure-5 to the petition. It was also argued that the petitioner was running a partnership firm along with wife of the complainant and during that transaction, it appears that cheque was taken by the complainant and at subsequent stage, it was presented before the Bank. On aforesaid ground, it has been prayed to set aside the order of cognizance. 4. Besides hearing learned counsel for the petitioner, I have perused the materials available on record, particularly the contents made in the complaint petition. In the complainant petition, it has been categorically stated that the complainant had given loan to the petitioner on two dates, once Rs.40,000/- and on another date Rs.35,000/- was paid. After persuasion, the petitioner had given a cheque for a total amount of Rs.75,000/-, which was presented before the Bank and Bank returned the cheque due to the reason that cheque was of old amount and C.B.S. number was required. The cheque was returned. It was asserted by the complainant in the complaint petition itself that only with a view to cheat the complainant, such cheque was issued and even C.B.S. number was not provided and the complainant was cheated by the petitioner. 5. In the present case, cognizance order was passed for offence under Sections 406 and 420 of the Indian Penal Code. It was asserted by the complainant in the complaint petition itself that only with a view to cheat the complainant, such cheque was issued and even C.B.S. number was not provided and the complainant was cheated by the petitioner. 5. In the present case, cognizance order was passed for offence under Sections 406 and 420 of the Indian Penal Code. It was not a case of dis-honour of the cheque due to insufficient amount in the account. On perusal of the complaint petition, it appears that it was a case of cheating and as such the learned Magistrate has rightly passed the order of cognizance. So far as intimation given by the petitioner vide Annexure-5 to the petitioner is concerned, it appears that letter was purported to be sent to the police station. The court is of the opinion that at this stage, it would not be appropriate to come to a definite conclusion regarding veracity of Annexure-5 to the petition. Those questions can be examined by the court below at appropriate stage. I do not find any defect in the order of cognizance. 6. The petition stands dismissed.