Prem Nath Sharma v. THE STATE OF BIHAR

for the quashing of the order dated 15.12.2004 passed therein by Sri Shiv Kumar Shukla, the erstwhile Judicial Magistrate, First Class, Bettiah, whereby he has taken cognizance against all the accused, including the petitioner, under Section 406 and 420 I.P.C. as also Section 138 of the Negotiable Instrument Act (hereinafter referred to as “the N.I.Act”). The complainant, one Manoj Kumar, impleaded herein as Opp.Party no.2, filed the aforesaid complaint on 10.1.2004 inter alia stating that he runs a business agency at Narkatiaganj in the name and style of “M/S Shanti Automobiles (T.V.S.) Agency and on 17.12.2002 accused Prem Nath Sharma and Ravi Bhushan Srivastava came to his Agency requesting for instant delivery of two “Victor “ model motorcycles and when he informed them that two numbers of the - 2 - desired vehicles were not available at that moment they opted to take delivery of the one available vehicle immediately and to take delivery of the other when it became available . It is said that the total price of the two vehicles came to Rs.92370/- and four cheques of various dates for various amounts totaling Rs.69,000/- under the signature of one Pashupati Prasad was handed over towards the cost of the two motorcycles by accused Prem Nath Sharma. The complainant is said to have raised objections to the cheques under the signature of another person but he was assured by Prem Nath that the signatory was his own person whereupon the complainant , on the basis of the assurances given by the two accused, delivered one “Victor” model motorcycle to them. It is said that on 20.12.2002 and 24.12.2002 , accused Ravi Bhushan and Prem Nath Sharma respectively came to the Agency of the complainant and paid Rs.20,000/- and Rs.3370/- respectively in cash and took away the second motorcycle . It is alleged that on 24.12.2002 the complainant deposited the four cheques in his account for encashment and after about 3 months he learnt from his Bank that there was no money in the account of Pashupati Prasad, whereupon the complainant gave written information in this regard on

22.3.2003 to the said Pashupati Prasad. It is alleged that on the basis of the said information, Prem Nath, Ravi Bhushan and Pashupati came to the Agency of the complainant on 7.4.2003 and handed over a letter purported to have been written by Kailash Bihari, the Mukhiya of their Panchayat which contained directions to the complainant to take back and keep the vehicles and to redeliver the same after the entire amount - 3 - was paid. Accordingly, the complainant took back the vehicles but when he demanded for return of the relevant documents and keys, the accused assured to hand over the same on the following day as they had been left behind inadvertently. However, the same was never returned on one pretext or the other notwithstanding the complainant having made several visits to the aforesaid three persons. Eventually, on 13.1.2004 when the complainant along with the witnesses went to the house of the petitioner herein, he was abused and threatened of dire consequences in the event any demand for documents and keys were made in future. Assailing the impugned order, it was submitted on behalf of the petitioner that it would be apparent from a perusal of the complaint petition itself that no offence either under the Penal Code or the N.I.Act is made out against the petitioner as the admitted position is that the two vehicles had been returned by the accused to the complainant and the non-return of the keys and documents thereof, even if accepted to be true, would be of no consequence since they would be useless in absence of the vehicles. It is also submitted that there is no mention in the complaint petition as to whether the Rs.20,000/- and Rs.3370/- given in cash to the complainant had been returned and on this basis it has been alleged by the learned counsel for the petitioner that this false case had been filed by the complainant only to misappropriate the money paid in cash. In this view, according to the learned counsel for the petitioner, no case under the Penal Code is made out. Similarly, no case under the N.I. Act was made out as - 4 - there had been no compliance of the statutory provisions of Section 142 N.I.Act. Admittedly, the statement of the complainant on S.A. or the deposition of his witnesses at the enquiry under Section 202 Cr.P.C. is not before me but from perusal of the impugned order it appears that on consideration of the materials available on record, the learned Magistrate found a prima facie case to have been made out against the accused. That apart, it is true that the vehicles were returned to the complainant by the accused but there is no denial of the fact that the petitioner had taken delivery of the motorcycle and the cheques issued were not dishonoured. The vehicles were returned only after intimation of dishonour of the cheques was given to the signatory thereof and for all this period the accused had retained possession of the motorcycles which would definitely make out a case of temporary misappropriation. In the facts and circumstances of the case, I find no merit in this application which is dismissed. ( Abhijit Sinha, J ) Patna High Court, Patna Dated: the 30th June,2009 Nawal Kishore Singh/A.F.R.