Judgment:
ORDER
Abhijit Sinha, J.
1. Both the petitioners herein are arrayed as accused in Complaint Case No. 1389(C) of 2005 and through this application they have prayed for quashing of the entire criminal proceeding arising therefrom including the order dated 18.6.2005 passed therein by Sushri Saroj Kumari, Judicial Magistrate, 1st Class, Patna, whereby she has taken cognizance under Sections 406 and 409 IPC and Section 138 N.I. Act.
2. One Santosh Kumar Singh, impleaded herein as O.P. No. 2 filed the aforesaid complaint on 17.5.2005 stating inter alia that he is a sub dealer of Toyota Brands from Bebco Motors Pvt. Ltd. and carries out business in the name and style of 'M/s Jagdamba Auto Sales Pvt. Ltd.' in Patna and that accused Kundan Kumar, a businessman at Muzaffarpur, was a good friend by reason whereof there was close intimacy with his mother also. It is alleged that on 27.9.2004 the said Kundan Kumar came to his office at Patna and requested for help of Rs. 5 lacs immediately as the marriage of his sister had been fixed in the month of November, 2004 with a promise to return the same by December, 2004 as by that time he would have received payments of money that was due to him from others. However, the complainant expressed his inability to provide him with such huge amount immediately. It is said that both the accused again came to his office on 6.10.2004 and requested him to give at least Rs. 3 lacs as they were short of funds and also stayed the night at the residence of the complainant. It is said that the complainant promising to gather funds to the best of his ability and sent back to the accused Muzaffarpur. Then on 8.10.2004 the complainant with one Kamlesh Kumar allegedly went to Muzaffarpur and there along with witness No. 3 went to the residence of the accused and handed over Rs. 1,60,000/- whereupon he was requested to arrange at least three lacs with an assurance to pay back the entire amount by December, 2004. It is alleged that on 12.10.2004 both the accused persons reached the complainant's office and again requested him to arrange funds with an assurance by accused No. 2 that in the event of accused No. 1 failing to return the loaned amount she would pay the entire amount to the complainant by the end of March, 2005. It is further alleged that on 12.10.2004 the complainant arranged a further sum of Rs. 90,000/- and handed over the same to the accused persons in presence of witness Nos. 1 and 2 and other staff members. It is said that accused No. 1 handed over a cheque dated 1.1.2005 with an assurance that by December, 2004 the entire amount would be deposited in that account and Rs. 40,000/- would be paid back by accused No. 2 when her insurance policy would mature in March, 2005.
3. It is said that the complainant was shocked when no marriage card was sent to him in November, 2004 and in the first week of December, 2004 when he contacted the accused No. 1 he was informed that the marriage of his sister had not materialized and the entire amount was lying with him which he would return and that he had already given a cheque. It is further alleged that when the cheque for Rs. 2,10,000/- was presented it bounced and on contacting accused No. 1, his mobile was found switched off and then accused No. 2 was contacted on the landline phone which was also found to be dead. Thereafter, it is said, the complainant went to Muzaffarpur and met accused No. 2 who requested him to re present the cheque as accused No. 1 had gone to Delhi for urgent work and by reason thereof the amount could not be deposited in the bank account and the same had been utilized by accused No. 1 in his business. The cheque was again presented and was returned again with a remark of 'insufficient fund'. Legal notice was sent to both the accused but no payment was made and accused No. 2 even refused to meet the complainant at Muzaffarpur. Thereafter during the months of February to April on various occasions accused No. 1 telephonically promised to reimburse the complainant but the same was not complied with and the amount loaned still remained due.
4. The submissions on behalf of the petitioners is that although the complainant and accused No. 1 were close friends no money at all was ever given to them as loan and there was no specific allegation against the petitioners. It was further submitted that even if the averments made in the complaint petition are accepted then no case is made out against the petitioner No. 2 as she neither received the money allegedly given by way of loan nor she had signed the cheque which had allegedly bounced on two occasions.
5. So far as the question of dishonor of the cheque is concerned it was submitted that the cheque bounced on 1.2.2005 and the legal notice was given to the petitioners on 10.2.2005 with a request to repay the amount within 15 days of receipt of legal notice i.e. 25.2.2005. In this context it was submitted that the period of cause of action starts from 25.2.2005 and as per the provisions of the N.I. Act the complaint was required to be filed within a period of one month from starting point of the cause of action which would mean that the complainant ought to have been filed on 17.5.2005 and as such the cognizance under Section 138 N.I. Act is barred by limitation in view of the provision under Section 142(b) N.I. Act.
6. It was further submitted that a post dated cheque amounts to an agreement and in the event of breakdown in the agreement it will give rise to a civil wrong for which no liability will be fixed under Section 420 IPC. So far as the issue of Section 406 IPC is concerned no submissions have been advanced.
7. Admittedly the alleged amount of loan was received by petitioner No. 1 on both occasions and the post dated cheque had also been issued by him and as such petitioner No. 2, apart from having visited he complainant along with her son, and having assured to pay the loan amount by March, 2005, no other allegation appears to have been made against her in the complaint petition.
8. In the facts and circusmtnaces of the case the petitioner No. 2 Sushila Verma cannot be made liable for the offences whereunder cognizance has been taken and therefore the prosecution so far she is concerned, is hereby quashed and the application as far as she is concerned is allowed.
9. So far as petitioner No. 1 is concerned, the specific stand is that no money at any point of time had been advanced to him and as such he could not be made liable for same and even if complainant's case is believed then no case under Section 138 N.I. Act can be said to have been made out against him since the same was barred by limitation.
10. The stand taken by the petitioner No. 1 appears to be self contradictory. If no money was advanced to him where was the necessity of having issued a post dated cheque in favour of the complainant. Therefore, even if an offence under Section 138 N.I. Act by reason of limitation is not made out, against the petitioner No. 1, then certainly the offences under Sections 406 and 420 IPC appear to have been made out against him. The reason therefor would be that having promised to repay the amount and although a cheque was issued from that account yet no amount was made available in the said account to enable encashment of the cheque and notwithstanding the reminders sent by the complainant, accused No. 1 never cared to pay the amount due with him, presumably with an ulterior motive. In that view of the matter a prima facie case for proceeding against petitioner No. 1 does appear to have been made out.
11. In the facts and circumstances of the case the application is allowed in respect of petitioner No. 2, Sushila Verma, and the impugned order taking cognizance against her is quashed. However, so far as petitioner No. 1 is concerned he will face the prosecution for the offences whereunder cognizance has been taken.
12. Accordingly the application is allowed in part to the extent mentioned in the previous paragraph.