IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.52772 of 2006 RAM AUTAR CHOUDHARY, S/O RAM KRISHNA CHOUDHARY, R /O MOHALLA- PANKHATOLI, P.S.- KAZI MOHAMMADPUR, DISTT- MUZAFFARPUR. ………PETITIONER. Versus 1. STATE OF BIHAR. 2. KAUSHAL KUMAR DAS @ KAUSHAL KISHORE DAS, SON OF LATE TEJ NARAYAN DAS, R/O MOHALLA- SASTRI NAGAR, KANHOLI, P.S. MITHANPURA, DISTRICT- MUZAFFARPUR AT PRESENT POSTED AS ASSISTANT MANAGER, PUNJAB NATIONAL BANK, REGIONAL OFFICE, PANKAJ MARKET, SARAIYA GANJ, P.S.- TOWN, DISTRICT- MUZAFFARPUR. ….. OPPOSITE PARTIES. ----------- 8 21.04.2011 This application has been filed for quashing the order dated 26.09.2003 passed by the Judicial Magistrate, Ist Class, Muzaffarpur, in Complaint Case No. 1998 of 2003, taking cognizance under Sections 420 and 406 of the Indian Penal Code and Section 138 of the Negotiable Instrument Act. The allegation in the complaint petition was that there was an agreement between the parties to sell a piece of land, for which the petitioner is said to have taken advance of Rs. 55,000/- by cheaque. The complainant deposited the said cheque on 21.07.2003 in the account of the Punjab National Bank. On 24.07.2003, the Bank sent a notice to the complainant stating that the 2 cheque had bounced on account of “insufficient fund”. After receiving the notice of the bank, the complainant sent legal notice to the petitioner on 24.07.2003 and thereafter filed this case on 22.08.2003. The submission on behalf of the petitioner is that in fact the petitioner has paid entire Rs. 49,000/- by cheque subsequently. Further, the main point of this case is whether the legal notice was validly served on the petitioner. From perusal of the complaint petition it is clear that the notice was issued on 24.07.2003, however the date of receipt of the notice has not been mentioned in the complaint petition. On the basis of the aforesaid fact, counsel for the petitioner submits that the complaint case itself is vague, it has been filed without waiting for 15 days after valid service of notice as envisaged under Section 138 of the Negotiable Instruments Act. This Court finds that the opposite party has not brought on record any material to show that the notice was validly served. Specifically in view of the fact that notices were issued by registered cover by the opposite 3 party no. 2. Thus the case would fail on the ground alone, as there is no material on record to show that the notices were validly served. This Court may take into account the fact, that subsequent to the filing of the case, Rs. 55,000/- along with interest has been received by counsel for opposite party vide drafts issued and mentioned at paragraph 4 of the brief. Therefore, the said advance amount has been paid to the opposite party no. 2 at the stage of admission. Learned counsel for the opposite party no. 2 submitted that he has instructions to state that nothing less than Rs. 25,000/- as interest is acceptable to his client. The stand of opposite party no. 2 is not acceptable to this Court for the reason that it does not come within the scope of a criminal proceeding to demand an interest on the principal amount. Nobody has appeared at the stage of hearing to oppose this case. However, in the facts as narrated above this Court is quashing the proceeding under Section 138 of the Negotiable Instruments Act on the ground that no case is made out as the provisions of Section 138 have 4 not been not fulfilled. In a case of this nature the ingredients of cheating are not made out. There was an agreement with between the parties in the nature of a business transaction- the petitioner had agreed to part with some land and had taken an advance from the opposite party no. 2. For some reasons the talk failed and the petitioner issued a cheaque for payment of he advance amount, which bounced. Thus the ingredients of Sections 420 and 406 of the I.P.C. are not made out in the facts of this case as there was no intention to cause wrongful loss to the opposite party at the time of the transaction. I thus allow this application and quash the order dated 26.09.3003 in Complaint Case No. 1998 of 2003. Bhardwaj/ ( Sheema Ali Khan, J.)