IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.16787 of 2007 1. ANAND MOHAN PRASAD SINGH @ ANAND MOHAN SINGH son of Late Sheo Balak Singh, 2. Amitesh Gaurav @ Amitesh Kumar Singh @ Prince Son of Anand Mohan Prasad. Both resident of village, Sandanandpur, P.s. Baliya, District- Begusarai, at present residing at Prince computer Sheopuri, Pokhariya, P.S.+ Town, District Begusarai …………… Petitioners Versus 1. THE STATE OF BIHAR 2. Pawan Kumar @ Bablu, son of Shri Ram Naresh Kunwar, resident of Mohammadpur Gautam, P.S.Nayagaon, District-Begusarai at present residing at sweets Divekar Bhawan complex, Ramanand Babu sadanandpur Kothi, Begusarai Kalisthan Chowk, Begusarai. …………………. Opposite Parties. ----------- 6 05.05.2009 The two petitioners want quashing of the F.I.R. which is Begusarai Town P.S. Case No. 407 of 2006 which originated from Complaint Case No. 2144(C) of 2006. The case came to be instituted against the petitioners who are father and son under Sections 420, 467, 468 and 471 of the Indian Penal Code read with Section 138 of the Negotiable Instrument Act. O.P.No.2, namely, Pawan Kumar filed a complaint before the Court of Chief Judicial Magistrate, Begusarai stating therein that on oral request made by the petitioners a sum of Rs. 2, 21,000/- was given to the petitioners for construction of the house and for employment of petitioner No.2. On assurance 2 given by the petitioner No.1 that the above amount shall be refunded and returned by cheque. Thereafter a cheque was given to the complainant bearing No. 089204 relating to Saving Account No. 113593, the cheque was dated 6.11.2003. The complainant deposited the same on 12.11.2003 in the Bank and the same bounced on the ground of insufficiency of fund. It is stated in the complaint that legal notices came to be issued in November, 2003 and again in July, 2004 but when these petitioners failed to give any response, the complaint in question came to be filed in 2006 which was referred to police for enquiry and the F.I.R. was lodged against these petitioners. Submission on behalf of the petitioners is that the allegation against them is vague and cannot be sustained. They are being harassed by wrong kind of complaint which came to be lodged against them. Even prima-facie if the allegation is taken to be true that a cheque was issued to the complainant on 6.11.2003 and the same bounced in November, 2003, it was basically a case of breach of law under Section 138 of the N.I. Act but there are 3 unexplained reasons why the complainant choose to keep mum for almost three years and then lodged the present complaint which was registered as an F.I.R. The other Sections which have been alleged under the substantive offence of the I.P.C. are more cosmetic and more made then made out. The Sections have been added to overcome the bar under the law which may have crept in the substantive offence of Section 138 of the N.I. Act. Learned counsel for the petitioner submits that there are many occasions where complaints have been filed under Section 420 of the I.P.C. and other related sections where a basic violation of Section 138 is the core issue. Learned counsel representing O.P.No.2 submits that the petitioners are in the habit of similar kind of activity where on a due assurance the money was paid, may be on oral request and when the cheques bounced. He also submits that a Panchayati was also held and only when the complainant did not return his money he was advised to file the present complaint. He also submits that there is no bar to maintain a case under other substantive sections of the I.P.C. He submits that cases 4 of such kind is made out and in this regard reliance has been placed in the case of Bhupen Kshettry and Ors. Vs The State of Bihar and Anr reported in 2007(1) BBCJ 497. From the allegation made in the complaint as well as the efforts taken in the matter this Court has no hesitation in coming to the conclusion that the complainant seems to have been ill advised or wrongly advised in law. He has not been vigilant enough to protect his interest within the parameter of the law, on the money lent to these petitioners. Primary fact is that a cheque came to be issued in favour of the complainant which he also accepted and is bounced in the year 2003 and if he has chosen to go for alternative settlements like Panchayati etc. and waited for three years to file the present case by way of complaint then the Court should not allow a prosecution only because police has instituted and registered a case under Section 420, 467 etc and 138 of the N.I. Act. The case primarily being a case of violation of Section 138 of the Negotiable Instrument Act where the substantive provision under the proviso laid 5 down in the parameters is that the aggrieved person must move the Court within a time frame. The Present case having been filed much beyond the period prescribed under Section 138 and the proviso thereto, the petitioner’s have made out a case for interference. The F.I.R. instituted against them relating to Begusarai P.S. Case No. 407 of 2006 including the order taking cognizance if any, stand quashed. This quashing application is allowed. Bibhash (Ajay Kumar Tripathi, J.)