ORDER
M.L. Visa, J.
1. This application by petitioner has been filed for cancellation of bail of opposite party No. 2 granted in complaint case No. 612(c) of 1999 under Sections 406, 420, Indian Penal Code (in short ‘IPC’) and Section 138, Negotiable Instruments Act by Mr. V.D. Rai, Judicial Magistrate, 1st Class, Patna on 27.9.2002.
2. The case of petitioner, in short, is that he had executed a sale deed in favour of Urmila Prasad for sale of his house for Rs. 7,01,000/- but subsequently he was not interested to sell his house, therefore, he gave Rs. 7,01,000/- to opposite party No. 2 for returning the same to Smt. Urmila Prasad because opposite party No. 2 was a common man but opposite party No. 2 did not pay the aforesaid money to Urmila Prasad and petitioner had to sell his house to Smt. Urmila Prasad and he suffered irreparable loss and injury and when he demanded his money from opposite party No. 2, he issued a cheque for Rs. 7,01,000/- but the said cheque was dishonoured and the petitioner then filed complaint case No. 612(c) of 1999 (Annexure-1) against opposite party No. 2 who filed an application being Cr. Misc. No. 17871 of 1999 for quashing but the same was withdrawn by him (Annexure-2) and, thereafter, opposite party No. 2 handed over twenty-eight cheques each of Rs. 25,000/- to petitioner to settle the dispute but none of those cheques was honoured (Annexure-3). The further case of petitioner is that opposite party No. 2 filed an application for his anticipatory bail before the learned Sessions Judge, Patna on 11.8.2000 stating therein, inter alia, that a compromise between him and petitioner had been arrived at and opposite party No. 2 has already given the amount to petitioner by issuing twenty-eight post-dated cheques and petitioner has already received payment of those cheques and petitioner has already filed an application before the Court below for withdrawal of the case and the learned Sessions Judge disposed of his anticipatory bail application on 19.8.2000 and, thereafter, opposite party No. 2 filed anticipatory bail application being Cr. Misc. No. 30446 of 2000 before this Court which was dismissed on 5.12.2000 and two years, thereafter, opposite party No. 2 surrendered before the Court of Shri V.D. Rai, Judicial Magistrate, 1st Class, Patna and he was first granted provisional bail without hearing the petitioner and, thereafter, petitioner appeared and opposed the confirmation of bail? Opposite party No. 2 on the ground that all the twenty-eight cheques given by opposite party No. 2 were dishonoured but in spite of this, the learned Magistrate confirmed the provisional bail of opposite party No. 2 by observing that no case under Section 406, IPC was made out and further observing that on the cheque, there was no signature and account number. According to petitioner, the learned Magistrate was not justified in recording the finding that no case under Section 406; IPC was made out and there was no signature on the cheque because the cheque originally issue by opposite party No. 2 for Rs. 6,20,000/- (Annexure-6) bears the signature of opposite party No. 2 and so far the question of not mentioning the account number on cheque is concerned, that was obligatory on opposite party No. 2. The further case of the petitioner is that in order to give an impression that a draft in the name of Smt. Urmila Prasad was purchased for Rs. 7,01,000, opposite party No. 2 gave a Xerox copy of draft to petitioner but subsequently he got that draft cancelled and received back his money and he did not pay single pie to Smt. Urmila Prasad. The petitioner has prayed for cancellation of bail granted to opposite party No. 2.
3. Notice to opposite party No. 2 was issued but inspite of receipt of notice, he did not appear.
4. Although in the application under consideration, in para 17, petitioner has stated that he had handed over a sum of Rs. 7,01,000/- to opposite party No. 2 for refunding the same to Smt. Urmila Prasad but in the complaint petition (Annexure-1), the case of petitioner is that he handed over a sum of Rs. 6,20,000/- in cash to opposite party No. 2 and because remaining sum of Rs. 81,000/- could not be managed by petitioner, therefore, opposite party No. 2 issued a cheque of Rs. 81,000/- in the name of Smt. Urmila Prasad on 8.10.1998 from his account which he was having in Federal Bank Limited, Patna and this amount was later on paid by the petitioner to opposite party No. 2 on 27.10.1998 by cheque No. 233705.
5. As stated above, the case of petitioner is that he had given a sum of Rs. 6,20,000/- in cash to opposite party No. 2 for returning the same to Smt. Urmila Prasad because petitioner had received this money earlier from Smt. Urmila Prasad as consideration money of his sale deed which he had executed in respect of a house in favour of Smt. Urmila Prasad. The reason for not returning the money to Urmila Prasad by petitioner himself and it was sought to be returned through opposite party No. 2, as given by the petitioner, is that opposite party No. 2 was common friend. In the order dated 19.8.2000 passed by learned Sessions Judge, Patna in the matter of anticipatory bail application of opposite party No. 2, it appears that because opposite party No. 2 took the plea of compromise, the learned Sessions Judge dispose of the application with a direction to opposite party No. 2 to surrender in the Court below and he further observed that if the Court below was satisfied about the compromise after verifying from complainant (now petitioner), in that event, opposite party No. 2 was to be released on regular bail. The order dated 24.6.2002 (Annexure-5) of the Court of Mr. V.D. Rai. Judicial Magistrate, Patna when opposite party No. 2 surrendered before that Court shows that opposite party No. 2 was granted provisional bail because on that day, petitioner was not present in Court and this provisional bail was subject to verification of compromise as pleaded by opposite party No. 2. The impugned order shows that on 27.9.2002 when this matter was again taken up, petitioner appeared and he denied any compromise with opposite party No. 2 and the Court below then heard both the parties for passing the order on merit and after hearing both the parties confirmed the provisional bail of opposite party No. 2. From the perusal of impugned order, I find that it is true that the Court below has observed that there is no signature and account number of opposite party No. 2 on cheque from which it can be said that opposite party No. 2 has issued the cheque but then I find that this was not the only ground on which opposite party No. 2 has been granted bail. The Court has also observed that there was no material on record to support the allegation of petitioner on the point of entrustment of money given by him to opposite party No. 2 which according to Court below is essential ingredient for Section 406, IPC. The Court below further observed that, admittedly opposite party No. 2 was the third party between the petitioner and Smt. Urmila Prasad. After observing all these facts, the Court below lastly observed that whatever may be the fact but then from the materials on record, it is clear that the matter relates to money transaction and dispute appears to be of civil nature and opposite party No. 2 had no criminal antecedent.
6. In the application, the only grievance of petitioner is that opposite party No. 2 has not returned him the money which was handed over to him for giving it to Smt. Urmila Prasad which he did not give to her. There is no allegation of petitioner that after release on bail, opposite party No. 2 is in any way misusing the privilege of bail either by giving any threatening to witnesses of complainant or is trying to delay the disposal of case either by absconding or in any other manner.
7. I, therefore, find no merit in the application of petitioner. The application, therefore, stands dismissed.
