IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.3119 of 2011 MUKESH SHARMA Versus THE STATE OF BIHAR & ANR. ----------- 2. 27.1.2011 After having heard Shri Bhola Prasad, learned counsel appearing on behalf of the petitioner and after having gone through the complaint petition, the Court is fully convinced that it was not a fit case in which the Magistrate namely, Shri Niraj Bihari Lal, Judicial Magistrate, Ist Class, Bhagalpur could have summoned the petitioner for committing offence under Section 138 of the Negotiable Instruments Act. There is a clear averment in paragraph 4 of the complaint petition that the petitioner was instructing his bankers not to make payment. Thus, the petitioner was issuing a direction to his bankers to stop payment. The Magistrate appears missing the niceties of the offence of cheating which is always dependent upon the criminal mind from the very inception. Sometimes, such a criminal mind may occur at some later stage of a transaction. This appears to be a case in which not only the criminal intent was from the very beginning but also it was continuing at every transactional level requiring the Magistrate to summon the petitioner also under Section 420 as also 406 of the Indian Penal Code. As such, while setting aside the order dated 18.8.2009 passed in Complaint Case No. 1431 of 2008, I direct the Magistrate to re- draft his order in the light of facts pointed out and elucidation on formation of the offence of cheating with an intent to defraud a 2 person. This petition is allowed with the above direction to the Magistrate. Kanth ( Dharnidhar Jha, J.)