IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.30865 of 2006 B.BHADURI @ D.BHADURI @ B.BAHADURI S/O A.K. BHADURI, PROP. OF NEW MEDICINE TRADER AGENCY NOTIZHEEL, PS- TOWN DISTT- MUZAFFARPUR--PETITIONER Versus 1. THE STATE OF BIHAR 2. M/S PFIZER LIMITED THROUGH ITS AUTHORISED SIGNATORY, ALOK KUMAR, ASKAR A MARKETING BAZAR SAMITTEE ROAD, RAJENDRA NAGAR, PS- RAJENDRA NAGAR,PATNA,DISTT- PATNA – ----------------------------OPPOSITE PARTIES. ----------- 14 2.7.2009 Order taking cognizance dated 13.6.2005 has been passed by Sri D.M Tripathi, Judicial Magistrate, 1st Class, Patna in Complaint Case no. 890 (C ) of 2005 against the petitioner under sections 406,420 of the Indian Penal Code and section 138 of the N.I. Act. The order taking cognizance is under challenge in the present proceeding. The Complaint in question came to be filed by M/s Pfizer limited company alleging therein that the petitioner had given order to the Company to supply certain medicines through transport. The medicines amounting to Rs. 14, 58, 850/- was duly received by the petitioner. Petitioner thereafter handed over a cheque of the above amount to the complainant for settlement of the accounts and dues. The cheque was duly deposited at Vaisya Bank, Budh Marg, Patna which was returned with an endorsement “insufficient fund”. Petitioner was informed about the dishonour of the cheque but he refused to respond. This compelled the complainant to send a registered notice demanding payment which was followed up by a legal notice as well. When the petitioner maintained complete silence the Company decided to protect its commercial interest and filed the complaint case. In terms of the - 2 - offence having been made out cognizance came to be taken vide order dated 13.6.2005. Petitioner now wants quashing of the order and in support thereof several submissions have been made. His first submission is that the mandatory provision of section 138 of the NIA Act has not been followed in the present case. It is out and out a civil dispute and accounting and therefore no ingredients of sections 406 and 420 of the IPC are made out. Since the complaint was time barred no cognizance could be taken by the concerned Judicial Magistrate. Learned counsel representing the opposite party no.2 however submits that the conduct of the petitioner by itself preclude him from any relief because he is not only defrauded the Company but has even taken the various courts for a ride in the matter. A detailed affidavit in opposition has been filed wherein copies of various orders which have come to be passed in bail application and even the quashing application have been brought on record. At every stage the petitioner before the lower court or the High Court had acknowledge and accepted the liability of payment of the amount in question and he had been granted bail only on the solemn statement or assurance given to the court. These orders are annexed to the said counter affidavit. Even in the present quashing application on many a occasions adjournments have been taken on assurance that needful will be done by the petitioner in the matter but now there is complete turn - 3 - around after having gained time and having kept the matter pending for years by trying to raise certain legal objection to the order taking cognizance. It is further urged that from the statements and acceptance made by the petitioner, at every stage of the proceeding, has the effect of waiving the limitation because if the liability or payment of dues is accepted then it is deemed that limitation stands extended since by such statements and submissions were made before the lower court including the High Court. The Court has gone through the various orders passed in bail applications as well as this quashing application which have been recorded by the court from time to time. Learned counsel for opposite party no.2 seems to be correct in stating that the petitioner has made categorical assurance and statement with regard to liability and willingness to settle the matter and he has gained advantage by such submissions. The courts have gone by the statements and treated them to be fair and honest statements. But if the petitioner thereafter now is trying to be cleaver by half then for the reasons indicated in the earlier part of the order the court cannot come to his rescue, whatever be the hyper technical submissions. Petitioner has to face trial and establish his bona fide. Opposite party no.2 has liberty to bring all the statements, orders and materials which the petitioner has made in the various proceedings before the courts in his support, if he is so advised. - 4 - This application does not deserve any indulgence also in the light that the conduct of the petitioner lacks of total bona fide and has not been fair and honest one. This application is dismissed. RPS (Ajay Kumar Tripathi, J.)