Criminal Miscellaneous No.24390 OF 1999 In the matter of an application under Section 482 of the Code of Criminal Procedure ---------- Vivek Sinha, Son of Major A.K.Sinha, resident of G-99, Nav Vihar, Part-I, Sector-34, Noida, U.P. --- Petitioner Versus 1. THE STATE OF BIHAR 2. Mr. Bhaskar Pathak, Son of Sri Mukti Narayan Pathak, resident of Nirmala Bhawan, P.S. Kadam Kuan, District- Patna -------------- Opp.Parties. ------------ For the petitioner : Mr. Pankaj Kumar Sinha, Advocate For Opp.Party No.2: S/Sri Sanju Prasad Singh & Janardan Singh, Advocates For the State : Smt. Indu Bala Pandey, A.P.P. ------------- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR Rakesh Kumar, J. The sole petitioner, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, has prayed for quashing of the order dated 5.5.1999 passed in Complaint Case No.498(C) of 1999 by Sri B.K.Sinha, Judicial Magistrate, Patna. By the said order, the learned Magistrate has taken cognizance of offence under Sections 406, 420 of the Indian Penal Code and 138 of the Negotiable Instruments Act (hereinafter referred to as “the N.I.Act”. 2. Short fact of the case is that Opp.Party no.2 filed a complaint petition disclosing therein that he was doing business and the petitioner along with some known persons of the complainant requested the complainant for financing loan of Rs. 1.5 lacs for starting 2 his business. Initially, the complainant was not ready to finance. However, after persuasion he gave a loan of Rs.1,26,000/- to the petitioner for a period of two months only and the petitioner gave a post-dated cheque bearing no.66538 dated 27th August,1998 for an amount of Rs.1,26,000/-in favour of the complainant. The complainant had financed the petitioner by paying the amount in cash. It was further alleged that when the cheque was presented before the Bank, it was not honoured and the same was returned by the Banker along with letter no.99 dated 3.3.1999. The complainant thereafter sent a legal notice to the petitioner through his advocate. The legal notice dated 6.3.1999 was issued to the accused petitioner for payment of the same within a period of 15 days from the date of receipt of legal notice. Despite of issuance of notice, since the accused did not pay the cheque amount, the complainant arrived at a conclusion that accused petitioner has dishonestly and fraudulently issued him cheque knowing fully well that the same was going to dishonour. The complainant has stated in the complaint petition that he has suffered loss and the complainant was cheated. After filing of the complaint petition, the complainant was examined on S.A. and in support of the complaint, one witness, namely, Kumar Rajnish was also examined. After being satisfied with the materials available on the record, the learned Magistrate by its impugned order took cognizance of the offences, as stated above and directed for issuance of summons for securing the attendance of the accused persons. 3. Sri Pankaj Kumar Sinha, learned counsel appearing on 3 behalf of the petitioner, while challenging the order of cognizance , has firstly argued that on perusal of entire complaint petition, no offence under Sections 420 and 406 is made out. He submits that there is no averment in the complaint petition that the complainant was cheated. Learned counsel for the petitioner, while relying on a Judgment of Hon’ble Supreme Court, reported in 2000(1) BBCJ 144(SC); G.Sagar Suri & Anr Vs. State of U.P. & Ors., has argued that the Hon’ble Supreme Court has held that in the complaint petition there must be specific averment regarding cheating and only then offence under Section 420 of the Indian Penal Code can be considered as made out. Learned counsel for the petitioner has specifically referred paragraph nos.13 and 44 of the Judgment in G.Sagar Suri’s case (Supra). 4. While questioning the order of cognizance in respect of the offence under Section 138 of the N.I.Act, learned counsel for the petitioner has argued that under Section 142 of the N.I.Act, the court was not authorized to take cognizance after the expiry of the period of one month from the date of cause of action. He submits that in this case, legal notice was issued on 6.3.1999 and after expiry of 15 days from the issuance of legal notice, the complainant was required to file complaint petition within a period of one month. He further submits that in the present case, cause of action finally arose on 21.3.1999. However, the complaint petition was filed on 21.4.1999. According to the learned counsel for the petitioner, the complaint petition was filed after the period prescribed under Section 142(2) of the N.I.Act. On this very point, he has relied upon a Judgment of this Court, reported in 4 2000(1) BBCJ 140; Chandan Kumar Vs. State of Bihar & Anr. He has specifically referred to paragraph 5 of the Judgment and submits that the complaint has to be filed within one month from the date of cause of action. Learned counsel for the petitioner has also referred to an another Judgment reported in 1999(2) PLJR 86(SC); Saket India Ltd. & Ors Vs. India Security Ltd. He submits that the Hon’ble Supreme Court has reiterated the view that complaint case is to be filed within a period of one month from the date of cause of action for offence under Section 138 of the N.I.Act. On the aforesaid grounds, learned counsel for the petitioner has prayed for quashing of the order of cognizance in the present case. 5. Smt. Indu Bala Pandey, learned Addl.Public Prosecutor appearing on behalf of the State has opposed the prayer of the petitioner. On the point of limitation, she submits that while computing the period of limitation, the date of issuance of notice will be excluded and if the date of issuance of notice is excluded, certainly the complaint petition was filed within the period prescribed under the Act. So far the question of commission of offence under Sections 406 and 420 of the Indian Penal Code is concerned, she submits that the complaint petition itself categorically states that there was an entrustment and thereafter the complainant was cheated by the petitioner. Accordingly, she has prayed for rejection of the present petition. 6. Besides hearing learned counsel for the parties, I have also examined the materials available on the record of the present 5 petition. The petitioner has brought on record only complaint petition and the ordersheet of the complaint case. On perusal of the complaint petition, it is evident that the complainant had entrusted Rs.1, 26,000/- to the petitioner and for refund of the same, the petitioner had issued a post-dated cheque for the same amount. It was agreed that the amount will be returned within a period of two months. After expiry of the said period when the cheque was presented to the Bank for its encashment, the same was not honoured. This categorically indicates that with dishonest intention, the petitioner had obtained money in the garb of loan and he gave a post-dated cheque. This prima facie indicates commission of offence under Section 406 as well as Section 420 of the Indian Penal Code. The complainant has categorically stated in the complaint petition that offence of cheating was also committed. Besides the word “cheating”, if the complaint petition is read in totality, the offence as alleged by the complainant is prima facie made out. So far as the question of limitation in taking cognizance of the offence under Section 138 of the N.I.Act is concerned, I am of the view that at this preliminary state, no finding is required to be recorded by this Court. Such plea can be taken at the appropriate stage. Moreover, on the basis of materials available on the record, this Court is satisfied that prima facie the offence as alleged by the complainant was committed and while taking cognizance of the offence as indicated above, the learned Magistrate has committed no error. 7. Accordingly, I do not find any merit in the present petition and the petition stands rejected. 6 8. In view of rejection of this petition, the interim order of stay dated 22.9.2000 stands automatically vacated. Let a copy of this order be sent to the court below forthwith. Patna High Court,Patna Dated: the 6th May,2010 Nawal Kishore Singh/ N.A.F.R. ( Rakesh Kumar, J )