IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.26776 of 2011 Sagar Prasad, Son of late Balgovind Mahto, Resident of Village Raien, P.O. Bhagwatipur, Karmaur, PS Pandarak, District Patna ---- Petitioner Versus 1. The State Of Bihar. 2. Mithilesh Kumar, Son of late Shivjee Mahto, Resident of Village Sadikpur, P.O. Sahri, PS Barh, District Patna ---- Opposite Parties. With Cr. Misc. No. 30042 of 2008 Sagar Prasad, Son of late Balgovind Mahto, Resident of Village Raien, P.O. Bhagwatipur, Karmaur, PS Pandarak, District Patna ---- Petitioner Versus 1. The State Of Bihar. 2. Mithilesh Kumar, Son of late Shivjee Mahto, Resident of Village Sadikpur, P.O. Sahri, PS Barh, District Patna ---- Opposite Parties. ----------- 3 17.8.2011 The restoration application is allowed for the reasons mentioned therein and Cr. Misc. No. 30042 of 2008 is restored to its original file. Now, the matter is being heard on merit. Cr. Misc. No. 30042 of 2008 has been filed against the order dated 24.5.2008, passed in Complaint Case No. 250(C) of 2008 by the A.C.J.M., Barh, Patna by which the Court has taken cognizance for offences under Section 406 of the Indian Penal Code and Section 138 of the Negotiable Instrument Act. Learned counsel for the petitioner submits that the case would be made out under Section 406 of the Indian Penal Code as there is no misappropriation or intention to cheat the opposite party no. 2. This aspect of the matter may be considered at the stage of framing of charges by the Court concerned. It has also been argued on behalf of the petitioner that a case under Section 138 of the Negotiable Instrument Act would not be 2 made out as the complainant would have to show that the cheque that was issued was in lieu of a valid liability due to him or in lieu of a debt. This is a question of fact which will have to be considered at the appropriate stage of the case. Cr. Misc. No. 30042 of 2008 is disposed of with the aforesaid observations. Sanjay (Sheema Ali Khan, J.)