IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.26228 of 2006 PURNIMA SAH Versus STATE OF BIHAR & ANR ----------- 14/ 17.09.2008 Heard learned counsel for the petitioner and learned counsel for the Opposite Party. The order under challenge is dated 20th of January, 2006 passed by Sub-Divisional Judicial Magistrate, Lakhisarai in Complaint Case No. 368C/2005, whereby and whereunder on perusal and consideration of complaint petition, statements recorded under Section 202 of the Cr. P.C. in the case he has passed order of cognizance and thereby directed the petitioner to face trial for offence punishable under Section 138 of N.I. Act as well as also under Section 420 of the I.P.C., on prima facie, is being made out. Complaint was filed against the petitioner by the opposite party in respect of dishonour of two cheques which is on being presented in the bank, ultimately returned to the payee with the endorsement that there was insufficient fund in the account of drawer of the bank. The only contention raised on behalf of the petitioner is that there is non-compliance of the mandatory provision in law contained in Section 138(b) of the Negotiable Instruments Act. According to the learned counsel for the petitioner, the cheques are said to have been dishonoured by the bank on 28.06.2005 but required notices were sent to the petitioner on 17.09.2005. There is mandatory provision in law for sending such notice within one month from the date of - 2 - communication of the dishonour of the cheques by the drawee. So, it cannot be presumed that time of two months will be consumed in transmitting such message in respect of dishonour of cheques by the banker to the drawee. On the other hand, learned counsel for the opposite party has submitted that, as a matter of fact, the opposite party has received the notice of dishonour of cheque on 18.08.2005 and as such he sent notice within one month as required under the law, on 17.09.2005 so, there is neither any illegality nor any lapses on his part for non- compliance of the relevant provisions of law. Having considered aforesaid facts, submissions, advanced on behalf of the learned counsel of both sides, this fact regarding date of communication of dishonour of cheques and thereby sending a notice to the drawer, are subject matter of trial, the fact which can be asserted or denied in course of trial by the contesting parties of this case and for this entire criminal prosecution cannot be quashed. The petition stands dismissed. However, it will remain open for the trial court to consider this aspect before framing of the charge. Sanjeet (Subash Chandra Jha, J.)