IN THE HIGH COURT OF JUDICATURE AT PATNA
Cr.Misc. No.33839 of 2010
NIRAJ KUMAR
Versus
STATE OF BIHAR & ANR
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2/ 27.10.2010 None appears for the petitioner. I have heard Shri
Dashrath Mehta, learned APP for the State.
The petition seeks quashing of order dated 25.8.2008
by which Shri Sanjay Kumar, Judicial Magistrate Ist Class,
Patna has summoned the petitioner for facing a trial under the
charge of committing an offence under section 138 of the
Negotiable Instruments Act (hereinafter referred to as the Act).
Cognizance of the above noted offence is provided for
by section 142 of the Act and it is provided by section 142(a) of
the Act that no court shall take cognizance of the offence
punishable under section 138 of the Act except upon a
complaint in writing made by the payee or as the case may be,
the holder in due course of the cheque. The further condition is
contained in section 142(b) of the Act which indicates that the
complaint may not be filed within one month of the date on
which cause of action arises under Clause – C of the proviso to
section 138 of the Act.
On the perusal of the provision of section 138 of the
Act, what appears is that the cheque has to be presented to the
bank for payment within a period of six months from the date it
is drawn and within the period of its validity, whichever is
earlier. It further appears that the payee or holder in due course
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of the cheque has to make the demand for payment of money of
the cheque amount by giving a notice in writing to a drawer of
the cheque within thirty days of the receipt of the information
by him from the bank regarding the return of the cheque as
unpaid and, lastly, it the drawer of such cheque fails to make
payment of the said amount of money to the payee, or as the
case may be, the holder in due course of the cheque within
fifteen days of the said date. Thus, what appears is that if the
cheque bounces back on account of any reason and the amount
is not paid to the holder in due course, he is required to give a
notice in writing within thirty days of receipt of such
information regarding the reason of non-payment of the amount
and, thereafter, even if he does not get the amount paid to him,
then he shall have to wait for fifteen days further and then file a
complaint.
What appears from the statements made in the
complaint petition is that after having received the information
from the bank about the dishonour of the cheque, the
complainant orally informed the accused regarding non-
payment. This statement is made in paragraph 3 of the
complaint petition. It is further stated that the complainant sent a
registered notice to the accused on 29.4.2008 for paying up the
amount but he did not receive the payment and lastly, he filed
the complaint petition on 11.6.2008. The date on which the
complaint was filed, appears covered fully by the provision of
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section 138 of the Act.
In that view of the matter, the order of cognizance
appears properly passed, as a result of which, this petition is
dismissed as of no merit.
Anil/ ( Dharnidhar Jha, J.)