IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.575 of 2009 1. Smt. Pratima Jha, wife of Sri Subhash Chandra Jha 2. Subhash Chandra Jha, S/o Late Ganesh Jha Both resident of Village- Old Post Office, Station Road, Ward No. 14, Madhubani, P.S. and District-Madhubani. ….Petitioners. Versus 1. The State of Bihar. 2. Devendra Jha, son of Late Umakant Jha, resident of Village- Ward No. 6, Binodanand Jha Colony, P.S. and District- Madhubani, Bihar. …..Opposite Parties. For the petitioners :- Mr. Anant Kumar Bhaskar, Advocate. Mr. Sanjay Kumar Jha, Advocate. For the O.P. :- Mr. Giridhar Gopal Tiwary, Advocate. For the State :- Mr. Damodar Pd. Tiwary, A.P.P. ----------- 3. 20. 12. 2010. Heard. This criminal miscellaneous petition has been filed for quashing the order dated 11. 11. 2008, passed in Cr. Revision No. 725 of 2006/81 of 2008, by which order taking cognizance passed by Shri S. K. Singh, Judicial Magistrate Ist Class, Madhubani, in C.R. No. 1126/04, T.R. No. 2740/06 has been confirmed. The prosecution as alleged that accused persons taken loan of Rs. 20,000/- from the complainant with a promise to repay the amount within three months. After lapse of three months, accused persons have not returned the money. On much persuasion a cheque of Rs. 7,000/- bearing No. 67772, dated 27. 10. 2003 was given to the complainant. However, the said cheque was presented on 18. 12. 2003, but the said cheque was returned with endorsement that "no sufficient fund in the account." It is further alleged that accused persons was informed and ultimately a legal notice was 2 given on 17. 03. 2004. It is further alleged that money was not returned within 19. 09. 2004. It is further alleged that when the complainant went to accused persons to demand money, the accused persons abused and assaulted the complainant and refused to pay the amount. However, on this allegations learned lower court recorded the statement of the complainant on solemn affirmation and examined two witnesses and cognizance has been taken under Section 138 of the Negotiable Instrument Act and 504 of the Indian Penal Code. Against the order taking cognizance, a revision petition was filed before the District Judge and the District Judge rejected the revision petition confirming the order of taking cognizance of the Magistrate. Learned counsel for the petitioners, however, contended that cheque was given on 27. 10. 2003 and the said cheque was presented on 18. 12. 2003 which was returned with endorsement that "no sufficient fund in the account". However, there is no mentioned when the complainant got knowledge of such endorsement and hence it can well be inferred that he got knowledge on 18. 12. 2003. However, legal notice was given on 17. 03. 2004 after three months and hence it is contended that when the knowledge on 18. 12. 2003 then notice required to be given within thirty days as per clause (b) of proviso of Section 138 of Negotiable Instrument Act. However, since no notice was given within a period of thirty days from the date of knowledge of bouncing of the cheque, cognizance taken by 3 the Magistrate not sustainable. Hence relied upon decision reported in 2002(3) C.C. cases (High Court) 121 ( S.V. Muthye Vrs. State of Bihar and another). Learned counsel for the opposite party however, contended that order taking cognizance has been confirmed by the revisional court and further contends that ingredient of Section 504 is made out. However, having regard to the fact and circumstances of the case that cheque was issued on 27. 12. 2003 and presented on 18. 12. 2004 and the said cheque was returned with endorsement that no sufficient fund in the account. However, legal notice was issued on 17. 03. 2004. Hence admittedly legal notice was issued after thirty days from the date of its refusal and knowledge and apparently question arises whether prosecution under Section 138 of Negotiable Instrument Act is permissible. However, Section 138 of Negotiable Instrument act has provided three elements; "(i) the payee has to present the cheque to the bank during the validity of the same i. e. either six months or within the period of its validity whichever is earlier; (ii) the payee is required to issue notice in writing the drawer within fifteen days of the receipt of the information by him from the bank demanding the payment regarding return of cheque as unpaid; and 4 (iii) if the drawer of such cheque fails to make the payment of the amount of money to the payee within fifteen days from the receipt of such notice, the payee is entitled to file a complaint against such drawer for the offence under Section 138 of the Act." Hence the payee is required to give notice within fifteen days of the receipt of information by him from bank demanding the payment regarding return of cheque as unpaid. Hence under the fact and circumstances of the case, cheque bounced on 18.12.2004 no date of knowledge provided and notice issued on 17.03.2004 beyond the period of 15 days from date of refund of cheque. Having regard to the facts and circumstances of the case, notice was not given within thirty days from the date of refusal, hence order taking cognizance under Section 138 of Negotiable Instrument Act is not in according with law and it appears that learned Magistrate and revisional court passed order without due application of mind and hence not sustainable. However, there is allegation when the complainant demands of money the accused persons abused. However, taking into consideration of face value of offence under Section 504 I.P.C. is made out. Hence order taking cognizance under Section 138 of Negotiable Instrument Act, however, not sustainable and to that extent impugned order is set aside. However, offence under Section 504 I.P.C. is made out and it is jurisdiction to the opinion of the 5 Magistrate shall prevail. However, having regard to the fact, Section 138 of Negotiable Instrument Act not made out. Hence non-compliance of clause (b) of Section 138 of Negotiable Instrument Act order taking cognizance is hereby set aside and the petition is allowed. m.p. ( Gopal Prasad, J.)