Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.9642 of 2010 ====================================================== Sanjay Kumar son of Late Jagpati Lal, resident of Mohalla Chiraiya Tar, Khasmahal, Road No.3, Police Station-Jakkanpur, District-Patna .... .... Petitioner/s Versus 1. The State Of Bihar 2. Manoj Kumar, son of S.N. Ambastha, resident of Mohalla- 6, LF Bahadur Pur, Housing Colony, Block No.7, Quarter no.445, P.S. Agam Kuan, District-Patna .... .... Opposite Party/s ====================================================== CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR ORAL ORDER -------------------- 6 19-07-2012 Heard Sri Rana Vikram Singh, learned counsel for the petitioner and Sri Shambhu S.N. Singh, learned counsel appearing on behalf of complainant/Opp.Party no.2. The sole petitioner, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, has prayed for quashing of an order dated 03.02.2007 passed by Sri S.R. Dwivedi, learned Judicial Magistrate, 1st Class, Patna in Complaint Case No.C.A. Case No.398 of 2006. By the said order, the learned Magistrate has taken cognizance of offence under [STATUTE] and Section 138 of the Negotiable Instrument Act, 1881 (hereinafter referred to as the “N.I.Act”). Learned counsel for the petitioner has raised limited point that in the entire complaint petition or even in deposition, nothing Patna High Court Cr.Misc. No.9642 of 2010 (6) dt.19-07-2012 2 / 3 2 has been brought on record to show that in compliance of the provisions contained in the proviso to Section 138 of the N.I.Act , the complainant had got served notice on petitioner for clearing the cheque amount . He submits that no such demand was ever made. According to learned counsel for the petitioner, cognizance of offence under Section 138 of the N.I.Act is bad in law. However, he has not raised any argument in respect of offence under [STATUTE] . He submits that those facts can be examined by the court below at the appropriate stage. In this case a counter affidavit has also been filed by the complainant/Opp.Party no.2. However, in the counter affidavit also, the complainant has not brought on record anything to show that in compliance with Section 138 of the N.I.Act , he had ever issued written notice to the complainant for clearing the cheque amount. In such situation, the Court is of the opinion that contrary to the statutory provision , order of cognizance was not required to be passed under Section 138 of the N.I.Act It was informed by the parties that after the order of cognizance, which was passed long back on 03.02.2007, the case is continuing for evidence before charge. In view of the fact that stage of discharge has not come, the Court is refraining to pass any positive order declaring the Patna High Court Cr.Misc. No.9642 of 2010 (6) dt.19-07-2012 3 / 3 3 order of cognizance as void. However, it will be open to the concerned court to decide the issue at the appropriate state. The petitioner may take all these pleas at the appropriate stage. With above observation and direction, the petition stands disposed of. NKS/- (Rakesh Kumar, J)

Applicable IPC Section: 417

Statute Text:
Section 417 of the Indian Penal Code. Cheating. Whoever cheats shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.