IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.2360 of 2008 JAI PRAKASH PRASAD, son of Sri Satnayeran Prasad, resident of Mohalla Dujra, P.O. Budha Colony, Police Station Budha Colony, District- Patna. . . . . . Petitioner. Versus THE STATE OF BIHAR & ANR ----------- 4/ 07.05.2010 Heard learned counsel for the petitioner and the State as well as opposite party no.2. The petitioner has prayed for quashing the order dated 17.04.2007 passed by Judicial Magistrate, 1st Class, Patna in Complaint case no. 2011 C of 2006, whereby he has taken cognizance. Opposite party no.-2 filed complaint before the learned Chief Judicial Magistrate, Patna under Sections 406, 420 of the Indian Penal Code and 138 of the Negotiable Instrument Act. Opposite party no.2 alleged that the accused Jai Prakash Prasad took a loan of rupees two lacs from him. However, in token of the loan Jai Prakash Prasad issued a post dated cheque no. 315688 dated 01.12.2005. The opposite party no.-2 presented the cheque on 02.03.2006, which had bounced for insufficiency of fund. Opposite party no.2 further alleged that he got the knowledge of the same on 07.03.2006 and after completing some formalities, he has filed instant complaint case. Counsel for the petitioner submits that opposite party no.-2 did not approach the court with clean hands. He submits that the complaint case has been filed for the offence under Section 138 of the Negotiable Instrument Act is barred under Section 142 thereof. Learned counsel submits that in fact the opposite party no.2 had issued - 2 - legal notice on 23.03.2006 and thereafter he issued another legal notice dated 21.06.2006. Learned counsel submits that in the complaint case opposite party no.2 has suppressed the legal notice dated 23.03.2006. He further submits that in view of Section 142 of Negotiable Instrument Act, a complaint ought to have been filed at the maximum period of 45 days, excluding the time taken for service of notice on the person, who has taken loan. He further submits that once a notice is filed, the case has to be filed within the time prescribed under Section 142 of the N.I. Act. and any complaint filed beyond such limitation would be bad in law. In support of his submission learned counsel has relied upon case of Sadanand Bhadran Vs. Madhwan Sunil Kumar reported in (1998) 6 SCC 514 particularly paragraph- 9. Learned counsel for the opposite party no.-2 submits that he retired from the post of Accountant General. He gave some loan to the petitioner, who issued a posted dated cheque for a sum of Rs. 2 lacs. Learned counsel submits that he again served legal notice to the petitioner on 21.06.2006, as the earlier notice dated 23.03.2006 was issued to one Alok Kumar, who was not the author of the cheque. Furthermore, evidence is complete and the case is fixed for argument. Heard counsel for the parties and perused the record. It would appear from Annexure-3 that though the notice was addressed to the petitioner and one Alok Kumar, but it was issued only to Alok Kumar. Subsequently, vide Annexure-4, legal notice was addressed and issued to petitioner Jai Prakash Prasad. - 3 - Now whether the first legal notice was issued and served on the petitioner would be issue of fact. Furthermore, the case is at the stage of argument, as such at this belated stage, I am not inclined to quash the order taking cognizance. In the result, this application stands dismissed. However, dismissal of this application will not come in the way of the petitioner in taking any step against opposite party no.-2 for not disclosing the fact that he had earlier issued a legal notice. Uday/ (Samarendra Pratap Singh, J.)