IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.30104 of 2007 ANIL KUMAR ISHWAR s/o Sri Ram Deo Ishwar, resident of vill.-Marachi, P.S.Bachwara, District- Begusarai. ….Petitioner Versus 1. STATE OF BIHAR 2. Hari Nath Singh s/o late Ramswarup Singh, r/o vill. Muriyari, P. S.- Angarghat, Distt. Samstipur. … Opp. Parties. ----------- 3. 20.08.2009. Heard counsel for the petitioner and counsel for the State. Despite service of notice effected on opposite party no. 2, no one has appeared on his behalf. Counsel for the petitioner while assailing the impugned order taking cognizance would submit that even if every thing as stated in the complaint petition is accepted to be correct, the complaint filed with regard to dishonoring of a cheque dated 1.9.1999 would not lead to prosecution of the petitioner under Section 138 A of Negotiable Instruments Act inasmuch as the period of limitation set out therein is only one month from the date of dishonoring of the cheques. In this context, he would place reliance on the judgment of the Hon’ble Apex Court in the case of Vir Prakash Sharma vs. Anil Kumar Agarwal and Anr. reported in 2007 (7) SCC 2 373. This Court would find that the petitioner has not only made a categorical averment of repayment of amount under cheque to the complainant/opposite party no. 2 but has also stated that the original copy of the cheque was thereafter returned by the opposite no.2 to the petitioner which was destroyed by him. The conduct of the opposite party no. 2 therefore as also is apparent from the reading of the complaint petition itself where he had sought to prosecute the petitioner on the basis of a photocopy of the some cheque would make the case wholly improbable and thus wholly covered by one of the three ingredients as laid down by Hon’ble Apex Court in the case of R. P. Kapur v. State of Punjab; reported in AIR 1960 SC 866 also reiterated in the subsequent judgments of the Hon’ble Apex Court. The reliance placed on the judgment of the Hon’ble Apex Court in the case of Vir Prakash Sharma (supra) is also apt inasmuch as the complaint for dishonouring the cheque in question was filed much beyond the period of limitation in 3 terms of Section 138A of N.I. Act. Considering the totality of the circumstances as explained above, this court would find that the prosecution of the petitioner in the present case would be a gross abuse of the process of the court and accordingly the entire prosecution including the order taking cognizance is hereby quashed. Accordingly, this application is allowed. kanchan (Mihir Kumar Jha, J.)