IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.2038 of 2008 SURYA DAYAL SINGH @ SADHU JEE, SON OF LATE MAHANAND SINGH, RESIDENT OF MOHALLA-SULTANPUR, KOIRI TOLA, P.S. DANAPUR, DISTRICT-PATNA…………………………….…..PETITIONER. Versus 1. THE STATE OF BIHAR. 2. SHRI ANIL SINGH, SON OF LATE RAM SHARAN SINGH, RESIDENT OF VILLAGE-MAHUARI BAGICHA, P.S. MANER, DISTRICT-PATNA. ……………………………………………………OPPOSITE PARTIES. ----------- For the Petitioner : Mr. Kripa Nand Jha, Advocate. For the State : Mr. Jharkhandi Upadhyay, A.P.P. For O.P. No.2 : Mr. Atul Kumar Pandey, Advocate. ------------- O R D E R The petitioner, who along with his son has been arrayed as accused in Complaint Case No.158(C) of 2007, has prayed for the quashing of the order dated 14.8.2007 passed therein by Sri S.K. Dixit, Judicial Magistrate, First Class, Danapur, whereunder he has taken cognizance of offences under Section 417/34 I.P.C. and 138 of the Negotiable Instrument Act (hereinafter referred to as “the N.I. Act”). The complainant, one Anil Singh, impleaded herein as O.P. No.2, filed the aforesaid complaint inter alia stating that as a farmer he grows food grains apart from potato and onions and impressed by the growth and size of his onions, the two accused persons purchased 172 packets of onions worth Rs.42925 out of which a sum of Rs.4925 was paid in cash and the remaining amount of Rs.38000/- was paid - 2 - through a cheque drawn on State Bank of India, Sheikhpura, Raja Bazar Branch, signed by accused Barun Kumar. The cheque on presentation, however, bounced for which a legal notice dated 14.2.2007 was sent by the complainant demanding payment within one week from the receipt of the notice but neither was the notice responded to nor was any payment made. It is alleged that on 23.2.2007 when the complainant went to the petitioner demanding the balance amount in the presence of witness Vidya Singh, both the accused accepted having received notice but refused to pay. It is stated that witness Vidya Singh had also suffered similar fate at the hands of the accused. It has been submitted on behalf of the petitioner that the entire allegation levelled against him was false and concocted and that he had no role to play in the entire episode since the cheque was issued by Barun Kumar and he was being harassed unnecessarily. It was also sought to be submitted that the petitioner being a Government servant such conduct could not be expected from him, the entire transaction having taken place between Barun Kumar and the complainant and the learned Magistrate had erred in taking cognizance against him also. It is by now well settled that the High Court in exercise of power under Section 482 Cr.P.C. at this stage cannot examine the veracity or otherwise of the allegation made in the complaint petition. What can be examined is whether the complaint petition discloses any offence and there is legal evidence in support thereof. The defence of - 3 - the accused is also not required to be considered at this stage as the stage for such consideration is the trial itself. The consistent evidence that has surfaced at the inquiry is that both the accused had purchased the onions and that they had not paid the entire amount of consideration. That apart the co-accused is none other than the son of the petitioner and the petitioner being a Government servant is not reason enough to protect him from prosecution. Even otherwise, it was not a case of a post dated cheque being presented for encashment earlier than the due date. While issuing the cheque the accused must have been aware of the insufficiency of funds in the account and notwithstanding the same the cheque was issued. This only shows an intention to cheat. In view of what has been discussed in the preceding paragraphs, I find no merit in this application which is dismissed. (Abhijit Sinha,J) Patna High Court, Patna. Dated: The 3rd of December, 2008. Nawal Kishore Singh/A.F.R.