IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.15201 of 2005 ROOPA ARORA & ANR Versus STATE OF BIHAR & ANR ----------- 16 13-08-2008 This application under section 482 of the Code of Criminal Procedure (in short as the Code) has been filed for quashing the order dated 30.8.2001 passed by learned Judicial Magistrate, 1st Class, Muzaffarpur in Complaint case no. 599/01 whereby and whereunder he has taken cognizance under sections 420 of the Indian Penal Code and 138 of Negotiable Instrument Act and issued summons against the petitioners. On 10.4.2001 opposite party no.2/complainant Shyam Sunder Bhimseriya filed a petition of complaint before the Chief Judicial Magistrate, Muzaffarpur alleging therein that he is proprietor of M/s Shankar Sri Coal Company and doing business in coal. Petitioner no.1/ accused Roopa Arora is a partner of the firm M/s Roshan Lal and company, Gorakhpur. Petitioner no.2/accused no.2 Harish Arora is performing all the functions of the firm and the other accused is the firm of the accused through which the accused are doing business. It was further stated that M/s Roshan Lal and company is an old firm and the complainant was very well known to the said firm. It was further stated that during course of business petitioners accused showed their willingness to do business in coal and discussed the matter relating to purchase and promised to pay the dues within three months after the carriage. The accused with 2 that condition purchased coal weighing 322.555 kgs @ 1100/- on 17.3.2000 and 18.3.2000 total amounting to Rs. 3,54,810.50. It was further alleged that accused did not pay the price according to the aforesaid condition but accused no.1 gave a cheque dated 15.7.2000 of Rs. 2,50,000/- bearing no. 54510 against account no.4393 PNB, Gorakhpur branch. The complainant after taking permission from the accused presented the cheque on 8.1.2001 in account no. 375, Syndicate Bank, Muzaffarpur branch which was sent to Gorakhpur for clearance but the bank did not honour the cheque due to non- availability of the fund. The bank of the complainant was informed about the same and thereafter Syndicate bank informed the complainant regarding dishonour of the cheque on 13.2.2001 with remark refer to the drawer. The complainant on receipt of above information from the bank sent a notice through his advocate on 22.2.2001 but the same returned with remark not met. Thereafter the complainant tried to contact so many times on telephone but the accused did not answer properly. The complainant made a last contact on 8.4.2001 when the accused used harsh language and refused to pay the dues which forced the complainant to file the complaint in court. The complainant was examined on solemn affirmation and during inquiry under section 202 of the Code two witnesses were examined and some papers were also filed and the learned Magistrate by the impugned order dated 30.8.2001 came to the conclusion that there was sufficient materials to proceed against the 3 petitioners accused under sections 420 of the Penal Code and 138 of the N.I.Act. and accordingly issued summons against them for appearance. Against the said order the petitioners have preferred the present application for quashing before this Court. It has been argued that the impugned order taking cognizance is wholly illegal and amount to an abuse of the process of the court. Learned counsel pointed out that notice of demand as required under section 138B of N.I.Act was not served on the petitioners and in absence of service of notice the cognizance of offence is illegal. Learned counsel further pointed out that though the cheque was issued by petitioner no.1 on 15.7.2000 but the same was presented on 8.1.2001 in Syndicate bank, Muzaffarpur branch with mala fide intention. He also submitted that since the cheque was never issued and signed by petitioner no.2 and so no case under section 138 of N.I.Act is made out against him. On the other hand learned counsel for opposite party no.2 supported the impugned order and submitted that no interference is required in the present application. He submitted that payee has to make a demand by giving notice in writing. He submitted that in the present case the Syndicate bank, Muzaffarpur branch on 13.2.2001 informed about the dishonour of the cheque and thereafter on 22.2.2001 notice was given to the accused demanding the payment which returned with remark not met. He submitted that the payee i.e. the complainant has performed his part and once the notice is dispatched, the part of the payee is over and 4 the next depends on what the sendee does. In support of his contention learned counsel placed reliance on a decision reported in 1999(2) PCCR 231 given in the case of K. Bhaskaran vs Sankaran Vaidhyan Balan & anr. Thus the position is that the cheque dated 15.7.2000 given by accused no.1 of Rs. 2,50,000/- was presented for collection at Muzaffarpur after taking prior permission of accused. Syndicate Bank, Muzaffarpur sent the same to Gorakhpur for clearance but the bank of Gorakhpur did not honour the cheque due to non- availability of fund in the account of the drawer. The Syndicate Bank of Muzaffarpur informed the complainant about it on 13.2.2001. On 22.1.2001 a legal notice was given which returned with the remark of postal peon not met. On 8.4.2001 the complainant made last contact to the accused when they used harsh language and thereafter the complaint was filed. At the stage of section 204 of the Code the court is only required to consider as to whether there are sufficient grounds for proceeding further under this provision. Sufficient grounds do not mean sufficient grounds for conviction but such evidence as would be sufficient to put the accused upon trial. In a proceeding instituted on complaint exercise of inherent powers to quash the proceeding is called for only in a case where the complainant does not disclose any offence or is frivolous, vexatious or oppressive. If the allegation set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, then it would 5 be open to the High Court to quash the same in exercise of inherent power. It is not necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complainant, therefore, has to be read as a whole. There is no material to show that the complaint is mala fide, frivolous or vexatious. On reading the complaint as a whole it appears that the ingredients of offences are disclosed. Therefore, at this stage this court finds that there is no illegality and infirmity in the impugned order. In the aforesaid facts and circumstances this application is dismissed. However, the petitioners would be at liberty to raise their points/grievance before the court below at the appropriate stage of the case. Al (M.Saran,J)