IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.43503 of 2007 M/S GUPTESHWARAN RICE MILLS (P)LTD.THRU. AVINASH TIWARY MANAGING DIRECTOR & Ors. Versus STATE OF BIHAR & ANR ----------- For the Petitioners : Mr. Girish Chandra Verma. For the O.P. no.2. : Mr. Mayank Shekhar. For the State : Mr. A.P.P. ------ 3/ 12.01.2009 Heard learned counsel for the petitioners and learned counsel for the State. The petitioners seek to question the proceedings against them in Complaint Case no. 1628(M)/2006 including the order of cognizance dated 16.06.2006. The allegations are two fold. Firstly that out of sanctioned term loan of Rs. 52,00,000/-, Rs. 21,41,000/- was disbursed. The over dues against the petitioners are to the extent of Rs.13,40,000/-. The petitioners have not repaid the loan. The Cheque given by them in part payment of the loan has also been disbursed. Learned counsel for the petitioners sought to persuade the Court of the absence of adequate pleadings with regard to Section- 138 N.I. Act, inasmuch as details of the date of dishonoured Cheque, the giving of a notice within the statutory period, receipt of the notice by the petitioners and failure to repay within the statutory period, making of the allegation within the period of limitation are thoroughly wanting in paragraph-8 of the complaint. It was additionally urged that it was the complainant, who did not disburse the full amount of the loan leading to the inability of the petitioners to commence operation and repay their 2 liabilities. The petitioners have not disputed that they are loanees. Non-repayment of the loan or a part of the loan is admitted on facts. The rest would be a matter for enquiry during the trial itself as to who was at fault by failure to disburse the full amount of loan or failure to repay the loan by the petitioner. That is the defence of the petitioners, which can be more appropriately considered in the trial. Insofar as the applicability of Section-138 N.I. Act is concerned, the complaint does lay the foundation in paragraph-8. However, the issue raised on behalf of the complainant with regard to the same is a matter to be more appropriately considered during trial. Needless to add that if the statutory requirements are not fulfilled, the applicability of Section-138 N.I. Act may be put into question during the trial. In the entirety, this Court finds no merit to interfere with the impugned order. The application is dismissed. S.B.P. (Navin Sinha, J.)