IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.7182 of 2009 SHYAM KISHORE PRASAD, SON OF LATE MAKARDHWAJ PRASAD, NORTH MANDIRI, P.S.-BUDHA COLONY, DISTRICT-PATNA. ………PETITIONER. VERSUS 1. THE STATE OF BIHAR. 2. SUJIT KUMAR, SON OF SRI SINGHESHWAR SINGH, RESIDENT OF ROAD NO.8, RAJIV NAGAR, P.S.-DIGHA, DISTRICT-PATNA. ……………OPPOSITE PARTIES. ----------- 3 16.12.2010 Heard. This is petition for quashing the order dated 24. 11.08 passed by Sri Om Prakash, F.T.C., V, Patna passed in Cri. Revision No.377 of 2008 by which the order passed by Dipak Kumar Singh, J.M., Ist, Class, Patna issuing process to accused person after taking cognizance for offence under Sections 420, 406 IPC and 138 of n.I. Act has been confirm and Cr. Revision has been dismissed. The prosecution case as alleged in the complaint petition is that the accused induced the complainant to provide his bus for carrying student of St. Joseph and Loyala School and an agreement entered into for engagement of bus. The complainant carried the student and the accused collected the money from the students as bus fair for their carriage but did not paid to the complainant resulting in dues of about four lacs. Thereafter, accused issued four cheque out of which one cheque of Rs.50,000/- encashed but rest three cheque worth Rs.50,000/-, 80,000/- and 54,479 bounced back. It is further alleged that on cheque worth Rs.84,000/- issued on 10-11-2006 bounced back. It 2 is alleged that notice sent on 5.3.2007 and reply of the notice received on 1-4-2007 that amount shall be paid shortly thereafter complaint was filed on 28.4.2007. On the complaint the complainant and his witnesses were examined and on considering the statement of complaint witness the summon order to be issued after taking cognizance. The said order of issuing process and taking cognizance was challenged in criminal revision before the Session’s Judge and ADJ-cum-FTC, V, dismissed the criminal revision confirming the order taking cognizance on the ground that the magistrate appear to have found there was dishonest intention of the accused by inducing the complaint to provide bus and there is no reason to differ with the opinion with magistrate and further found that cheque issued on 20.7.2006, 10.6.2006,30.10.2006 and 10.11.2006 and report of bank filed on cheque shows that all the cheques were presented within six months and was dishonored on 7.2.2007 due to insufficient fund in the account of the accused. The complainant gave legal notice to the accused on 5.3.2007 within one month from the date of dishonour of the cheque. It is not clear when notice was served but it is alleged in the complaint that accused sent reply of the notice on 11.4.2007. The question as to when notice served upon is a question of fact which is required to be proved during trial. If the date of reply as alleged in the complaint is considered the date of cause of action the complaint petition which is filed on 28.4.2008 prima facie appears to have been filed within time. Hence the FTC, V have rejected the 3 criminal revision that the is no illegality and hence no merit. The learned counsel for the petitioner however submits that the allegation made is in complaint is matter of breach of contract and no offence under Section 406/420 is made out and notice was sent on 5.3.2007 to the accused by complainant but the date of receipt of notice has not been mentioned. However having regard to the allegation that accused induced the complainant to provide bus and agreed to pay and on such inducement the complainant provided the bus and carried the student and the accused collected the money from student for carrying the student from bus but money not paid makes out an offence under Section 406 & 420 IPC when the cheque given with knowledge that money is not in the account. Further the cheques issued by accused was presented before bank which bounced back and even on notice by complaint within statutory period under Section 138 N.I. Act a reply was received that the cheque amount shall be paid but not paid within time stipulated makes out an offence under Section 138 N.I. Act and the fact itself shown the dishonest intention as well as wrongful loss to the complainant and wrongful gain to the accused as well breach of trust is prima facie made out. However from order of revisional court also apparent that the cheque given by accused was produced before bank within six month which bounced on 7.2.2007 and notice issued on 5.3.2007 i.e. within 30 days and on notice the reply received on 11.4.2007. It is true that receipt of notice not mention but notice issued a reply of notice received on 11.4.2007 itself establish the 4 notice deemed to have be served within time particularly when there is no specific assertion by the accused when notice served and hence prima facie offence under Section 138 N.I. Act is made out. Hence I do not find any illegality or irregularity in the impugned order to be interfered with and hence impugned order confirmed and the Cr. Misc. is hereby dismissed. PN ( Gopal Prasad, J.)