CRIMINAL MISCELLANEOUS No.1011 OF 2002 ------- In the matter of an application under section 482 of the Code of Criminal Procedure. ------- PRABHAT KUMAR PANDEY @ Prabhat Chandra Pandey, son of late Ramakant Pandey resident at Chackbasu, P.S.-Mithanpur, Dist.-Muzaffarpur …….. ……..Petitioner Versus 1.STATE OF BIHAR 2.Arun Kumar Kushwaha son of Sri Devendra Singh Residing at Pankhtoli, P.S.-Razi Muhammadpur, District-Muzaffarpur …… ……Opp.Parties -------- For the petitioner: Mr. Sunil Kumar Pandey For Opp.Partry No.2: None. For the State : Mr. A.M.P.Mehta, 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 an order dated 21.5.2001 passed by Mr. Paras Nath Singh, Judicial Magistrate, Ist Class, Muzaffarpur. By the said order, the learned Magistrate has taken cognizance of the offence under section 138 of the Negotiable Instrument Act. 2. Short fact of the case is that opposite party no.2 filed a complaint in the court of Chief Judicial Magistrate, Muzaffarpur on 16.11.2000 which was registered as Complaint Case No.2545 of 2000. In the said case it was disclosed that the complainant and. the petitioner were friends and for some business purpose the petitioner had taken Rs,10,000/- as loan from the complainant. The petitioner returned the loan amount by issuing a cheque vide Cheque No.1209726 dated 14.8.2000 and it was 2 alleged that when the cheque was presented before the bank for its clearance, the same was not honoured due to insufficient amount in the account. It has further been disclosed that thereafter the complainant got a legal notice issued to the petitioner which too went in vain and the amount was not cleared by the petitioner. Thereafter, the complainant-opposite party no.2 was constrained to file the present complaint case. After conducting enquiry, the learned Magistrate by its order dated 21.5.2001 took cognizance of the offence under section 138 of the Negotiable Instrument Act. 3. Aggrieved with the order of cognizance, the petitioner approached this court by filing the present petition. This court on 11.7.2002, while issuing notice to opposite party no.2, directed that in the meanwhile further proceeding in the court below shall remain stayed. Thereafter, on 31.10.2002 the case was admitted for hearing and since opposite party no.2 had already appeared through his counsel, the court did not pass any direction for issuance of notice. However, this court directed that during the pendency of this application, the interim order passed on 11.7.2002 shall continue and the order of stay is still continuing. At the time of hearing of the present petition, none has come forward on behalf of opposite party no.2 despite the fact that name of his counsel appears in the daily cause list. 4. Mr.Sunil Kumar Pandey, learned counsel appearing on behalf of the petitioner has confined his argument to the extent that order was passed contrary to the provisions contained in section 138(b) of the Negotiable Instrument Act, 3 1881. It was submitted that as per the provision after dishonour of the cheque and getting information of the same it was mandatory on the part of the complainant to give a notice to the petitioner within fifteen days. Learned counsel for the petitioner has placed the statement of the complainant on solemn affirmation and it was clarified that the complainant himself had admitted that he received information that cheque was dishonoured on 16.8.2000. This statement has been made in paragraph 2 of the solemn affirmation of the complainant and before that in paragraph 1 the complainant had admitted that legal notice was sent to the petitioner on 17.10.2000. Of course, in the complaint petition no specific averment was made that on which date the cheque was dishonored but from the statement on solemn affirmation it is not in dispute that legal notice was got issued to the petitioner after expiry of the statutory period of fifteen days which was applicable at the time of filing of the complaint. It was submitted that on this ground alone the order of cognizance is liable to be set aside. Learned counsel for the petitioner in support of his submission referred to the provisions contained in section 138(b) of the Negotiable Instrument Act and he has also relied upon a judgment of this court reported in 1998(3) P.L.J.R.205 (Mahabir Prasad Bagrodia Vs. State of Bihar). 5. Mr. A.M.P.Mehta, learned Addl. Public Prosecutor appearing on behalf of the State even in absence of any representation from opposite party no.2 has opposed the prayer of the petitioner. 4 Patna High Court The 20th August,2010 Md.S./NAFR 6. Besides hearing learned counsel for the parties, I have also perused the materials available on the record. In the complaint petition the complainant has stated that he had received a cheque on 14.8.2000 for an amount of Rs.10,000/-. Thereafter, he has stated that since it was dishonoured, he sent legal notice to opposite party no.2 and even, thereafter, on one pretest or other the petitioner deferred the matter relating to payment of the cheque amount and, as such, left with no option the complainant had filed the complaint petition on 16.11.2000. On perusal of the statement of the complaint recorded on solemn affirmation which is at page 11 of the petition it is clear that the complainant had accepted that cheque was dishonoured on 16.8.2000. In view of this submission, the court is of the opinion that the legal notice was got issued to the petitioner after expiry of the statutory period on 17.10.2000 whereas the cheque was dishonoured on 16.8.2000. Accordingly, in view of violation of statutory provisions contained in section 138(b) of the Negotiable Instrument Act, the order of cognizance is liable to be set aside. 7. Accordingly, the order of cognizance dated 21.5.2001 passed in Complaint Case No.2545 of 2000 by Paras Nath Singh, Judicial Magistrate, Ist Class, Muzaffarpur is hereby set aside and the petition stands allowed. (Rakesh Kumar,J.)