The timing and nature of allegations in a complaint can be considered in determining the substance of the case under relevant sections of the Indian Penal Code.

Heard Mr. Binay Kant Mani Tripathi, learned counsel for the petitioner and Mr. A.K. Srivastava, for the opposite party no. 2. Mr. Jharkahdi Puadhyaya, appears for the State.

2. The prosecution is sought to be prosecuted for the offences under Sections 420 and 406 of the Indian Penal Code. By the present application, the petitioner has put a challenge to the order dated 18.03.2008 passed by the learned Judicial Magistrate, Bettiah, West Champaran in connection with Complaint Case No. 1931C of 2006, whereby cognizance has been taken under Sections 420 and 406 of the Indian Penal Code.

3. The opposite party no. 2 is the brother of the original complainant, who died during the pendency of the complaint case. In the long complaint lodged by the brother of opposite party no. 2, it has been clearly stated that the petitioner runs the business of letting out money on interest. The brother of opposite party no. 2 after having realized that staying in town is of no value, came back to his village home and requested the petitioner to handover his half constructed shop so that the brother of the opposite party no. 2 could set up his livelihood after opening his shop in the aforesaid premises. For proper construction of the shop, it has been alleged, the petitioner demanded money. On severe insistence by the petitioner, the brother of opposite party no. 2 gave a cheque of Rs. 30,000/-. On one occasion the brother of opposite party no. 2 wanted his Rs.60,000/- which he had given earlier to be returned as the petitioner had already obtained a cheque from him, but the same was not returned. Rather, the brother of opposite party no. 2 was subjected to physical assault. The complaint came to be instituted for the offence under Sections 420, 406, 323, 452 of the Indian Penal Code and Section 27 of the Arms Act.

4. After examining witnesses offered on behalf of the prosecution, the learned Magistrate vide his order dated 18.03.2008 took cognizance against the petitioner under Sections 420 and 406 of the Indian Penal Code only.

5. Learned counsel for the petitioner submits that prior to lodging of the complaint, the petitioner had filed a complaint against the brother of opposite party no. 2 for the offence under Section 420 of the Indian Penal Code and Section 138 of the Negotiable Instrument Act.

6. The case of the petitioner is that the brother of opposite party no. 2, in order to put up a business, took loan from him and as a surety, gave a post-dated cheque of Rs. 30,000/-. The aforesaid cheque could not be encashed because of insufficiency of fund.

7. Learned counsel for the opposite party no. 2 has stated that the aforesaid case for dishonour of the cheque ended in conviction.

8. Learned counsel for the petitioner submits that after about a couple of days of lodging of the case for dishonour of the cheque given by the opposite party no. 2 to the petitioner, the present complaint was lodged. From the narration of the allegations in the complaint petition itself it would appear that the case has been lodged as a defence to the complaint earlier lodged by the petitioner. That apart, even without adverting to the case lodged by the petitioner against the brother of opposite party no. 2, the allegations in the present application do not make out a case under Sections 406 and 420 of the Indian Penal Code.

9. Considering this aspect of the matter, the order dated 18.03.2008 by which cognizance has been taken against the petitioner for the offence under Sections 406 and 420 of the Indian Penal Code is held to be without substance and is, therefore, quashed.

10. The application is allowed.

Application allowed.