The main legal point established is that the intention of cheating and non-payment under relevant sections of the Indian Penal Code must be proven, and the dishonour of a cheque can lead to maintainability of a complaint case under the Negotiable Instruments Act.

JUDGMENT :

Heard Mr. Chandan Kumar, learned counsel for the petitioner, Mr. V.S. Sahay, learned counsel for State and Mr. P.K. Deomani, learned counsel for the O.P. No. 2.

2. This petition has been filed for quashing of entire criminal proceeding in connection with Complaint Case No. 259 of 2011 including order taking cognizance dated 11.01.2013, pending in the Court of learned C.J.M, Gumla.

3. The complaint has been filed alleging therein that the complainant is the proprietor of Umang Marketing Sisai Road, Gumla. On 18.07.2011 accused along with her husband Manoj Kumar came to the shop of complainant purchased 96 pieces of Reliance Telcom Mobile set. The value of the said mobile was a sum of Rs. 94055/- but out of which she paid a sum of Rs. 50,000/- through cheque and about the rest amount she assured the complainant that she is a local lady no cheating will be done by her. The accused and her husband were known to the complainant and as such he believed upon them. The accused did not pay the balance amount. The complainant on several occasions told to make the payment then on 28.08.2011 the accused with her husband came to the shop of complainant and further gave assurance to make the payment of rest amount very soon. A cheque of Rs. 20,000/- was issued in favour of the complainant.

The further case of the complainant is that he deposited the cheque for its encashment in Bank of India, Gumla Branch. The Manager of the Bank of India, Gumla Branch called the complainant on 06.09.2011 and returned the cheque to him with return memo stating the fact that the amount in the Bank is not sufficient and due to insufficient fund the cheque was dishonoured. On 27.09.2011 when the complainant met with accused with her husband he asked as to why they had given such type of cheque which was not honoured and further said that they have cheated him thereafter the accused and her husband became ready to quarrel with him. Thereafter a legal notice was sent to the accused persons.

4. Learned counsel for the petitioner submits that the petitioner has purchased 96 mobile from the O.P. No.2 for which total amount of Rs. 94,055/- was to be paid to the O.P. No.2. He submits that the petitioner has already paid Rs. 50,000/- and rest of Rs. 44,055/- was required to be paid to the O.P. No.2. He further submits that for the rest of the amount, a cheque of Rs. 20,000/- was given by the petitioner which was dishonoured for which the present case has been filed.

5. On the other hand, learned counsel for the O.P. No.2 submits that admittedly the mobiles were supplied to the petitioner but the remaining amount has not been paid by the petitioner. He submits that there is no illegality in the cognizance order.

6. Learned counsel for the State submits that there is no illegality in the cognizance order.

7. In view of above submissions of the learned counsel for the parties, the court has gone through the contents of the complaint as well as order taking cognizance and finds that admittedly the petitioner has purchased 96 mobiles for which Rs. 94,055/- was required to be paid. The petitioner has already paid Rs. 50,000/- and rest of Rs. 44,055/- was required to be paid for which a cheque of Rs. 20,000/- was given by the petitioner which was dishonoured for which the present case has been filed. The Court finds that from the very beginning there is no intention of cheating in view of section 415 of I.P.C. The petitioner has already paid Rs. 50,000/- and she has tried to pay further payment for which she gave a cheque of Rs. 20,000/- and the said cheque was bounced. Thus the ingredient of section 420 and 406 of I.P.C. is not made out and the order taking cognizance with regard to section 420 and 406 of I.P.C. is bad in law. It is an admitted fact that a cheque of Rs. 20,000/- was issued which was bounced for that complaint case can be maintainable and the Court finds that so far as section 138 of N.I. Act is concerned, the learned Court has rightly taken cognizance un