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2018 DIGILAW 357 (GAU)

Barun Kumar Saha v. State of Assam

2018-02-26

HITESH KUMAR SARMA

body2018
JUDGMENT & ORDER : 1. This is a petition under Section 482 of the Cr.PC seeking quashment of the FIR, dated 12.12.2010 registered by Paltan Bazar Police Station, being Case No. 814/2010, under Sections 406/420/427/506 of the IPC. 2. I have heard Mr. PKR Choudhury, learned counsel for the accused-petitioner as well as Mr. BJ Dutta, learned Additional Public Prosecutor, appearing for the State respondent No. 1. 3. None appears for the respondent No. 2 on call. 4. I have perused the petition as well as the annexures furnished therewith. I have also perused the FIR as well as the Lower Court Records. 5. As per the contents of the alleged FIR, it is found that the accused-petitioner had taken an amount of Rs. 1 lakh as loan from the respondent No. 2 undertaking to repay the same within 175 days with an interest of Rs. 700/- per day and they executed an agreement to that effect. Thereafter, the accused-petitioner paid the interest on the aforesaid amount although he failed to pay the principle amount of Rs. 1 lakh. He issued a security cheque for the said amount. On the failure on the part of the accused-petitioner to pay the principle amount, the complainant/respondent No. 2 had deposited the aforesaid security cheque with his bank, i.e. Union Bank of India, which was dishonoured by the bank due to "stop payment" order. Thereafter, the present respondent No. 2/complainant also issued a legal notice to repay the amount aforesaid. Thereafter, as alleged, by the complainant/respondent No. 2 that the accused-petitioner approached him not to proceed with any case and he would make the payment. But, even then, he did not make the payment and therefore, he filed the complaint before the court of the learned Judicial Magistrate First Class which was forwarded to the Police Station and the Paltan Bazar Police Station, ultimately, registered the case aforesaid. 6. That a security cheque was issued by the accused-petitioner against the loan taken by him from the complainant/respondent No. 2, the fact that for non-payment of the said amount he deposited the cheque in the bank which was dishonoured, and the fact that he issued a notice thereafter are facts indicative of an offence under Section 138 of the Negotiable Instruments Act. 7. 7. On the other hand, as averred in the complaint petition itself, if there is an agreement executed between the parties in respect of repayment of the loan amount then also he has remedy available in the Civil Court for effecting the terms and conditions of such agreement. 8. On both counts, in the considered view of this Court, the Paltan Bazar PS Case, aforesaid, is not maintainable under the provisions of law under which it has been registered due to the background facts narrated above. That being so, the FIR, dated 12.12.2010, registered by Paltan Bazar Police Station being Case No. 814/2010, under Sections 406/420/427/506 of the IPC, is quashed. 9. This criminal petition is allowed accordingly. 10. Send down the LCR along with a certified copy of this judgment.