IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.52508 of 2007 ANAND NATHANI @ ANAND KUMAR NATHANI, SON OF LATE SATYA NARAYAN NATHANI, RESIDENT OF 149/2, D.N. SINGH ROAD, MOHALLA – KHARMANCHAK, P.S. KOTWALI, DISTT. BHAGALPUR. ------- PETITIONER. Versus 1. STATE OF BIHAR 2. ROOP KISHORE SHUKLA, SON OF LATE MURLIDHAR SHUKLA, RESIDENT OF 14, D.N. SINGH ROAD, P.S. – KOTWALI, DISTT. BHAGALPUR ----- OPPOSITE PARTIES. ----------- For the petitioner : Mr. Ganpati Trivedi, Advocate. For the State : Mr. Abhimanyu Sharma, A.P.P. For the Opposite Party No. 2 : Mr. Krishna Mohan, Advocate Mr. Praveen Kumar, Advocate. ----------- 3. 02/04/2010 The petitioner has filed this application for quashing the order dated 6.10.2007 passed by the Judicial Magistrate, 1st Class, Bhagalpur, in Complaint Case No. 363 of 2004 by which he has dismissed the petitioner’s petition dated 30.5.2007 as being not maintainable. The present case is borne out of a financial dispute between the present petitioner and the opposite party No. 2 in which cognizance was taken under Section 138 N.I. Act. The petitioner moved this Court earlier vide Cr. Misc. No. 4460 of 2007 and the application was permitted to be withdrawn by an order dated 15.2.2007 with liberty to raise all the points at the time of framing of charge. Unfortunately, since the case was governed under Chapter XX Cr. P.C., there was no question of formal order of framing of charge and, therefore, there was no occasion for the petitioner to have raised the point at the time of framing of charge. - 2 - On 15.5.2007, once the accusation was explained to the petitioner under Section 251 of the Cr. P.C., the petitioner filed an application on 30.5.2007 raising the point of limitation which by the impugned order the Magistrate has held that it is not maintainable and dismissed the application. The contention of the petitioner is that he had raised the point of limitation even on 15.5.2007 despite which the oral accusation was explained to them and the petitioner was put on trial. However, he has not contended that he had made oral submissions with regard to limitation despite which substance of accusation was explained in his application dated 30.5.2007. The further contention of the counsel is that the court when being confronted with the issue of limitation, it should have proceeded to decide the same as preliminary issue and not to proceed with the trial. The learned counsel for the petitioner contends that the question of limitation can be raised at any point and even at the stage of Section 245 Cr. P.C. the Court is not precluded from looking into the same. His further contention is that from the documents admitted by the Complainant, in fact, no offence under Section 138 N.I. Act is made out and the entire application is nothing but an abuse of process of court. The counsel for the opposite party No. 2 has brought to the notice of the court that now after the explaining of substance of accusation to the accused persons, the trial has proceeded and two witnesses have been examined and, - 3 - therefore, at this late stage, this Court should not quash the proceeding. In my view the issue of limitation and the fact that no offence under Section 138 of N.I. Act is made out by the petitioner was taken even when he had moved this Court vide Cr. Misc. No. 4460 of 2007 which did not find favour and, therefore, in this second application, this Court should not proceed to review the earlier order. Moreover, I do not find any illegality in the order of the Magistrate since he was thoroughly justified in holding that the application under Section 245 Cr. P.C. was not maintainable since he had already explained the substance of accusation to the accused on 15.5.2007 and there was no stage for a further review of the matter even on the point of limitation. In the aforesaid circumstances, this application is dismissed. S.Ali (Anjana Prakash, J.)