Subbash Bhagat vs State of Bihar and Another

Abhijit Sinha, J.—The petitioner Who is arrayed : as one of the accused in complaint case No. 628 of 2003 has prayed for quashing of the

entire criminal prosecution arising out there from including the order dated 27-6-2005 passed by the learned S.D.J.M. Purnea, whereby he has taken cognizance of offences u/s 420 I. P. C. and Section 138 of the Negotiable Instruments Act (hereinafter referred to as ''the N. I. Act'').

The short facts leading to the filing of the complaint is that Shambhu Kumar Arya, the complainant, impleaded as opposite party No. 2 herein, gave a cheque by way of advance of Rs. 4 Lacs in two instalments to the son of the petitioner herein who at the relevant time was in the company of the petitoner and on demand for returning of the sum advanced as loan, the son of the petitioner issued two cheques dated 24-12-2002 and 28-12-2002 both of which bounced. Legal notice from the opposite party No. 2 followed to the petitioner''s son.

It has been submitted by the learned'' counsel for the petitioner that the allegation against the petitioner is only of his having accompanied his son at the time when the loan was advanced to the son by the complainant and there was no allegation of his having either accepted the money advanced as loan nor of having issued the cheques which had bounced.

So far the offence u/s 138 N. I. Act is concerned, the petitioner admittedly did not issue the cheques. The cheques admittedly were issued By his son Sujlt Kumar and as it would appear that the notice was also given to only Sujit Kumar. Bouncing of a cheque issued by a person is his individual liability, and as such, if any offence is made out in the instant case it would only be applicable to the son of the petitioner Sujit Kumar and not against the petitioner.

Even so far as the offence u/s 420 I. P. C. is concerned, the complaint petition neither shows any dishonest or fraudulent intention of the petitioner nor Indicates that the petitioner accused had induced the complainant to loan out the money

In view of the discussions made above, the prosecution of the petitioner would" be an apparent abuse of the process of the Court.

Accordingly, the impugned order so far the petitioner is concerned, is hereby quashed and the application is allowed.

The criminal proceeding, however, will continue against the son Sujit Kumar against whom also the Court below has taken cognizance and a prima facie offence appears to have been made out against him.