Arun Kumar S/O Late Harbansh Lal Gover Vs. the State of Bihar and Shri Mohan Kumar S/O Late Sita Ram - Court Judgment

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- ajay kumar tripathi, j.1. heard learned counsel for the petitioner, learned counsel for opposite party no. 2 and learned app for the state.2. petitioner wants quashing of the order dated 6.12.2006 by virtue of which cognizance has been taken against the petitioner in complaint case no. 1476 (c) of 2006 under sections 406 and 420 of the indian penal code and section 138 of the negotiable instrument act.3. a complaint has been filed by opposite party no. 2 staling therein that the petitioner approached the complainant for extending a loan of rs. 11,00,000/- which the petitioner required for construction of multistoried building since he was in construction business. the money was promised to be returned within two months. when the money was not returned within the time frame the complainant approached the petitioner on which a cheque dated 20.2.2006 of the amount was issued drawn on icici bank. when the complainant presented the same in the bank he was informed by bank on 2.3.2006 that the cheque could not be honoured on the ground of insufficiency of fund.4. to protect his interest the opposite party no. 2 gave a notice on 30.3.2006 to the petitioner. the petitioner avoided receiving the same. in view of the above the complainant was forced to file the present complaint on 27.5.2006. after s.a. and the statement of the witnesses cognizance came to be taken by the learned judicial magistrate vide order dated 6.12.2006 which is the subject matter of challenge in the present application.5. it is stated in the quashing application that the petitioner is an aged and infirm person and he is physically disabled for which he requires mercy as well as pity. he has annexed certain medical prescriptions in support of his physical conditions etc. he submits that cognizance has been taken against the petitioner in the case when for a similar allegation an fir was also lodged against him which was registered as gandhi maidan p. s. case no. 357 of 2006 dated 17.8.2006.6. the contention is that in view of section 210 cr.p.c. both the cases cannot run together for the same offence. additional submission is that cognizance has been taken beyond the period of limitation under n.i. act and no offence under sections 406 and 420 of the i.p.c. is made out.7. learned senior counsel on behalf of the opposite party no. 2 has filed a detailed counter affidavit. he submits that contention raised at the bar requires no consideration for many a reasons. there is indication in the counter affidavit that the petitioner is in the habit of playing fraud and a large number of cases have been filed against him from time to time. the complainant is one of the victims of this chain of his conduct. in addition to that he submits that the complaint is for different allegation and the fir is for different allegation though the origin of the dispute may have a common background. the complaint is primarily filed on the basis of the inducement and fraud played against the complainant and bouncing of the cheque which was issued by the petitioner for the money which he had accepted but not returned. so far as the fir is concerned after investigation the police has submitted chargesheet against the petitioner under sections 341, 342, 323 and 504 of the ipc. the allegation made in the fir is borne out from the investigation which was made. the petitioner has to be tired separately for those charges which in no way same as the present proceeding.8. in the totality of the circumstances and after perusing the factual aspect of the matter, the court comes to a considered opinion that this is not the stage where the proceeding needs to be quashed in complaint case no. 1476 (c) of 2006. however the petitioner has liberty to urge all the points which may be available to him either on fact or in law at the time of framing of charge, if he is so advised.9. this application is accordingly, dismissed.