IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.9413 of 2009 PINKU KUMAR, SON OF PAWAN KUMAR KAITAN, PROPRIETOR, PINKU VASTRALAYA, (RETAILOR), KAPRAPATTI, DISTRICT- SAHARSA. ………PETITIONER. VERSUS 1. THE STATE OF BIHAR. 2. SUSHIL KUMAR, AGRAWAL, SON OF LATE NAND KISHORE AGRAWAL, PROPRIETOR FOR “SHIV SHANKAR TRADING COMPANY” DURGAASTHAN ROAD, DISTRICT-SAHARSA. ………OPPOSITE PARTIES. ----------- 3 07.01.2011 Heard. This is petition for quashing the order dated 10.7.2008 passed in Cr. Rev. No.105 of 2008 by learned Sessions Judge, Saharsa, by which the learned Sessions Judge, Saharsa, has dismissed the criminal revision affirming the order taking cognizance dated 29.2.2008 passed by learned Judicial Magistrate, Ist Class, Saharsa for offence under Section 420 IPC and 138 of N.I. Act. The prosecution case as alleged in the fardbeyan that the complainant has runs a whole sale business of cloths and the petitioner is a retailer and use to take the cloths on credit and it is alleged he took the cloth worth Rs.92,073/- credit and issued two cheques in the name of the establishment of the complainant for Rs.92,073/-. It is alleged that the two cheques deposited in bank bounced to back on 10.5.2007 and returned with endorsement referred to the drawer on 11.5.2007 and hence the case has been drawn. Learned magistrate after taking the statement of the complainant and witnesses ordered to issue process after 2 taking cognizance. However, order issuing process and taking cognizance was challenged before the Sessions Judge but in revision was dismissed and hence this criminal revision has been filed challenging the order of the revisional court as well as order taking cognizance. The learned counsel for the petitioner submit that no notice under the proviso of Section 138 of the N.I. Act has been given and neither in the complaint petition nor in the statement in solemnation affirmation mentioned that the notice was given to the petitioner and what was or the date on which the notice was received and there is no evidence at all that when the notice was issued or when it was received by the accused petitioner however there is no affirmation that by what mode the notice was sent and hence contend that since the provision of sub-clause B of the proviso to Section 138 having not been complied the prosecution under Section 138 is not permissible and the order taking cognizance is bad. It has further been contended with regard to Section 420 is concerned the dispute is with regard to the non- payment of the money which was for the taking the cloths on credit and since the parties were in the business transaction and hence there is no question of dispension but is an out and out civil dispute and hence taking the allegation on the face value no case for the cheating under Section 420 or no case under Section 138 N.I. Act is made out but it amounts 3 case of civil wrong with a civil liability. The learned counsel for the opposite party however contended that the notice was given though the date has not been mentioned but the cheque bounced back on 11.5.2007 and the case was filed on 4.6.2007 and hence the case has been filed within thirty days and further the petitioner took the cloths in pretext of payment but has not paid the amount and hence it shall deem to have cheated and took the cloths on false representations and deception. Hence on respective submission the question for consideration whether order taking cognizance is sustainable the allegation made were make out an offence. However, the cognizance has been taken in Section 138 and proviso to Section 138 N.I. Act mentioned that the cheque issued be presented within six months and the payee or the holder of the cheque makes a demand for payment of the said amount by giving a notice in writing to the drawer of the cheque within 30 days of the receipt of the information from bank regarding the return of the cheque as and clause 3 provides that if the drawer fails to make the payment of the said amount of the money to the payee within fifteen days of the receipt of the said notice the amount is not paid within fifteen days that is liable for prosecution However having regard to the fact that the prosecution has not been complied to show that any notice 4 has ever been served or sent to the accused person and hence no opportunity was given to the payee to make payment of the said amount and hence the cognizance taken under Section 138 is illegal as proviso to Section 138 has not been complied. However, with regard to Section 420 is concerned there is no allegation that at the time of taking the cloths there was any intention of the petitioner to betray or deceive and moreover the matter concerned with the non- payment of the money for the cloths taken on credit and unless it is established that there was intention to cheated at the material time at the outset no offence under Section 420 is made out. Hence having regard to the facts and circumstance even taking the allegation true on the face value of the complaint no offence is made out and hence the order taking cognizance and the criminal proceeding is hereby quashed. Accordingly, this petition is allowed. PN (Gopal Prasad, J.)