IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.42570 of 2005 MALAY NEERAV KAPASIM, son of Suresh Chandra Kapasim, resident of Mohalla- Goal Bagicha, P.S.-Kotwali, District- Gaya, at present residing at Mohalla- A.P.Colony, near Lakhautiya Computer Centre, District-Gaya, again at present residence of Hotel Purnima Pune, Mohalla-Piranggut Pune, District-Pune. Versus 1. THE STATE OF BIHAR 2. Anuj Kumar, son of Indradeo Prasad alias Baban Singh,resident of Mohall- Fatehganj Gurudwara Road, Gaya, P.S.- Kotwali, District-Gaya. For the Petitioner: Mr.Madhuresh Prasad, Advocate. For the O.P.No.2 : Mr.Rajendra Kumar Jain, Advocate. For the State : Mr.Jharkhandi Upadhyay,A.P.P. ----------- 05/ 30-03-2009 Heard learned counsel for the parties. This application has been filed for quashing of order dated 28.11.2003, by which the learned Chief Judicial Magistrate, Gaya, has taken cognizance for the offences under Section 138 of the Negotiable Instrument Act and Section 420 of the Indian Penal Code against the petitioner in Complaint Case No.1023 of 2003. Several points have been raised by the learned counsel for the petitioner but stress has been made on the point of non service of notice after bouncing of cheque. Learned counsel further submits that there should be some consideration on the point, as service of notice could only be gathered, if envelop was bearing even refusal by the Postal Department, which is lacking. Another point on his behalf is that no case under Section 420 of the Penal Code is made out. Once loan 2 amount was paid by issuing a cheque and that was bounced, then only offence under Section 138 of the Negotiable Instrument Act is made out. It is conceded by the learned counsel that averment is there for service of notice by refusal but there is no document i.e. envelop bearing refusal by the Postal Department. There can be much substance in the submissions made on behalf of the petitioner but that can be well considered by the learned Magistrate while framing the charge, though petitioner would have not been in a position to adduce any evidence but he will be before the trial court to point out the infirmities available on record. Further, if no offence under Section 420 of the Penal Code is made out, that also can be taken at the stage of framing of charge. Thus, no interference is needed at this stage by this Court. Accordingly, this application is dismissed. AH/ ( Mandhata Singh, J. )