Kaushal Kishore Pandey vs The State Of Bihar
2021 Latest Caselaw 3788 Patna

           IN THE HIGH COURT OF JUDICATURE AT PATNA
                   CRIMINAL MISCELLANEOUS No. 31676 of 2020
          Arising Out of PS. Case No.-2848 Year-2017 Thana- VAISALI COMPLAINT CASE
                                          District- Vaishali
      ======================================================

Kaushal Kishore Pandey, aged about 47 years, Gender-Male Son of Chandra Dev Pandey, Resident of Village- Brahrup, PS- Bhagwanpur, District- Vaishali, Bihar.

... ... Petitioner/s Versus

1. The State of Bihar

2. Ranjeet Kumar, aged about 40 years, Gender-Male, Son of Late Kapil Deo Singh, Resident of Village- Brahrup, PS- Bhagwanpur, District- Vaishali, Bihar.

... ... Opposite Party/s ====================================================== Appearance :

      For the Petitioner/s    :      Mr. Ambuj Nayan Choubey, Advocate
      For the State           :      Ms. Sucheta Yadav, APP
      For the Complainant     :      Mr. Manish Chandra Gandhi, Advocate

====================================================== CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 29-07-2021

The matter has been heard via video conferencing.

2. Heard Mr. Ambuj Nayan Choubey, learned counsel

for the petitioner; Ms. Sucheta Yadav, learned Additional Public

Prosecutor (hereinafter referred to as the 'APP') for the State and

Mr. Manish Chandra Gandhi, learned counsel for the complainant.

3. Learned counsel for the petitioner submitted that

there is some typographical error in paragraph no. 20 and the Patna High Court CR. MISC. No.31676 of 2020 dt.29-07-2021

prayer portion with regard to the case details. It was submitted that

the same should be Complaint Case No. C1-2848 of 2017, as has

been stated in paragraph no. 1, which has wrongly been typed at

paragraph no. 20 as Complaint Case No. C1-1171 of 2018, which

mistake has been repeated in the prayer portion and further that

the anticipatory bail petition number should be 103 of 2020

instead of 104 of 2020. Thus, prayer was made to rectify the said

mistakes.

4. In view thereof, let the number of the complaint case

be corrected to read as Complaint Case No. C1-2848 of 2017

instead of Complaint Case No. C1-1171 of 2018 in paragraph no.

20 as well as the prayer portion and further the number of the

anticipatory bail petition be corrected as 103 of 2020 instead of

104 of 2020.

5. The petitioner apprehends arrest in connection with

Complaint Case No. C1-2848 of 2017 dated 09.11.2017,

instituted under Sections 420 of the Indian Penal Code and 138

of the Negotiable Instruments Act, 1881 (hereinafter referred to as

the 'NI Act').

6. Earlier, the Court had granted time to the learned

counsel for the complainant to file a counter affidavit which was

done. Thereafter, in view of the stand taken by learned counsel for Patna High Court CR. MISC. No.31676 of 2020 dt.29-07-2021

the petitioner that for Rs. 16 lakhs for which the cheques in

question were said to have issued, he had already arranged for

transfer of a piece of land in favour of the wife of the complainant.

7. In such a situation, when the Court called upon

learned counsel for the complainant to explain the position, he

submitted that it was a separate transaction and has nothing to do

with the present case in which, the money taken by the petitioner

from the complainant was neither returned nor adjusted. Thus, the

Court had called upon learned counsel to explain as to how Rs. 16

lakhs was shown to have been paid in cash to the vendor of the

land in favour of the wife of the complainant, on which the

petitioner was a signatory by way of a witness, and also to bring

on record the Income Tax returns for the relevant period to

indicate that such money was available with the complainant/his

wife in order to be paid in cash to the concerned vendor. Today,

learned counsel for the petitioner submitted that he has not filed

such affidavit as many documents have still not been made

available to him.

8. The Court finds that despite sufficient indulgence

having been given to the complainant even earlier, with regard to

filing of counter affidavit and after that also, the matter has to be

finally heard on merits.

Patna High Court CR. MISC. No.31676 of 2020 dt.29-07-2021

9. Learned counsel for the petitioner submitted that he

being a broker had arranged for transfer of a land for the money

taken by him in favour of the wife of the complainant for which

no extra money was given to any party and it was the petitioner

who had paid the amount to the vendor for purchase of such land.

Thus, it was submitted that the cheques which were given to the

complainant were at an earlier point of time when the complainant

was wanting to buy a flat from the petitioner but later, the amount

having been adjusted towards payment to the vendor of the land

which was transferred in favour of the wife of the complainant,

who is totally dependent on the complainant and does not have

any separate source of income, the cheques given to the

complainant by the petitioner by way of security had to be

returned but the same was not done and the petitioner also in good

faith never could imagine that it would be misused, more so after

the land in favour of the wife of the complainant had been

transferred. Thus, it was submitted that there was some error in

judgment by the petitioner with regard to not informing the

concerned Bank to stop payment of those cheques, but the same

was due to the petitioner not suspecting that the complainant

would commit such dishonesty with him and would present the

cheques to the Bank for encashment. Learned counsel submitted Patna High Court CR. MISC. No.31676 of 2020 dt.29-07-2021

that even if, for the sake of argument and without admitting the

same, it is accepted that the petitioner had a liability to pay the

amount through a cheque, as per the instrument, the same would

constitute an offence only under Section 138 of the NI Act, which

is bailable, but no ingredient of Section 420 of the Indian Penal

Code with regard to cheating is made out as the amount taken by

the petitioner from the complainant has been fully adjusted by the

transfer of another piece of land in favour of the wife of the

complainant, on which document the petitioner is a witness. It was

submitted that another complaint case, with similar allegation, was

filed against the petitioner by the opposite party no.2 and he was

granted anticipatory bail by a coordinate Bench by order dated

05.02.2021 in Cr. Misc. No. 26960 of 2020, though upon

depositing Rs. 60,000/- in the Court below.

10. Learned APP submitted that the petitioner having

given the cheques was required to ensure their encashment which

has not been done.

11. Learned counsel for the complainant submitted that

the cheques have been returned unpaid with the endorsement that

the funds were insufficient, which clearly makes out an offence

under the NI Act and further that the transfer of land in favour of

the wife of the complainant was another transaction unconnected Patna High Court CR. MISC. No.31676 of 2020 dt.29-07-2021

to the present case. Further, it was submitted that the flat for which

the money was taken by the petitioner has been sold to another

person.

12. At this stage, when the Court reiterated its query as

to how Rs. 16 lakhs was paid in cash and whether the same was

disclosed before the taxing authorities, learned counsel for the

complainant could not give any reply.

13. Having considered the facts and circumstances of

the case and submissions of learned counsel for the parties, and in

light of the discussions made hereinabove, in the event of arrest or

surrender before the Court below within six weeks from today, the

petitioner be released on bail upon furnishing bail bonds of Rs.

25,000/- (twenty five thousand) with two sureties of the like

amount each to the satisfaction of the learned Judicial Magistrate-

II, Vaishali at Hajipur in Complaint Case No. C1-2848 of 2017,

subject to the conditions laid down in Section 438(2) of the Code

of Criminal Procedure, 1973 and further, and further, (i) that one

of the bailors shall be a close relative of the petitioner and (ii) that

the petitioner shall co-operate with the police/prosecution and the

Court. Failure to co-operate shall lead to cancellation of his bail

bonds.

Patna High Court CR. MISC. No.31676 of 2020 dt.29-07-2021

14. It shall also be open for the prosecution to bring any

violation of the foregoing conditions of bail by the petitioner, to

the notice of the Court concerned, which shall take immediate

action on the same after giving opportunity of hearing to the

petitioner.

                     15.      The    petition      stands     disposed         off   in   the

           aforementioned terms.


                                                (Ahsanuddin Amanullah, J.)


P. Kumar

AFR/NAFR
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