IMPORTANT POINT
Dishonour of cheque issued by way of security stands on a different footing.

Hemant Kumar, J.—This petition under Section 482 of the Cr.P.C. has been preferred for quashing the order dated 19.12.2007 passed by Sri A.K. Singh, Judicial Magistrate, 1st Class, Patna in Complaint Case No. 42 of 2007 whereby and where under he having found prima facie case under Sections 406, 420 of the Indian Penal Code and 138 of Negotiable Instrument Act ordered to issue process against the petitioner.

2. The brief fact, which lies to file this quashing petition, is that Opposite Party No.2, namely, Fatima Khatoon filed abovestated complaint case bearing Complaint Case No. 42 of 2007 in the court of Chief Judicial Magistrate, Patna alleging therein inter alia that she happens to be wife and attorney of one Patna High Court Cr. Misc. No.2461 of 2010 (7) dt.28-07-2012 Dr. Mumtaz Ansari with whom the petitioner had entered into an agreement on 19.10.2001 for borrowing a loan of rupees four lacs for carrying on his own business and on the same day petitioner received rupees three lacs fifty thousand through demand draft and rest rupees fifty thousand in cash and as the security petitioner issued a post-dated cheque bearing cheque no. 350175 dated 20.11.2002 to the husband of Opposite Party No.2. As per terms of the agreement, it was obligatory on the petitioner to pay a minimum monthly profit of rupees sixteen thousand every month by cash or cheque to the husband of the Opposite Party No. 2 but petitioner paid the aforesaid amount only up to the month of September, 2002. It is further alleged that the aforesaid Dr. Mumtaz Ansari appointed the Opposite Party No. 2 as his attorney for the above stated property including some others on 20.08.2002 and after that she approached the petitioner and requested for the payment of monthly profit for the month of October, 2002 and onwards but petitioner avoided to pay on the pretext of this or that and after that Opposite Party No. 2 informed the petitioner that she was going to present the above stated cheque of security with the concerned bank but on the request and promise of the petitioner, she did not present the aforesaid cheque. In the meantime, validity of the aforesaid cheque expired and after great persuasion and Patna High Court Cr. Misc. No. 2461 of 2010 (7) dt.28-07-2012 request petitioner issued another post dated cheque vide its No. 119361 dated 25.09.2006 and when the petitioner did not fulfil his promise, the Opposite Party No.2 presented the aforesaid cheque of rupees four lacs to Bombay Mercantile Bank, Frazer Road Branch, Patna for encashment but the same became bounced and re-turned to the Opposite Party No.2 on 12.11.2006 with an endorsement of account closed. Thereafter, she served a legal notice to the petitioner but the petitioner did not make the abovestated payment intentionally and fraudulently and after that she filed the abovestated complaint case.

3. Learned Chief Judicial Magistrate, Patna took cognizance of the offence and transferred the record to the court of Sri A.K. Singh, Judicial Magistrate, 1st Class, Patna for enquiry and trial. The learned Judicial Magistrate recorded the solemn affirmation of Opposite Party No. 2 and also the statements of witnesses and having perused the statements and documents available on the record passed the impugned order dated 19.12.2007 taking cognizance of Sections 406, 420 of the Indian Penal Code and 138 of Negotiable Instrument Act against the petitioner in the manner as statedabove.

4. Being aggrieved with the impugned order, petitioner preferred the instant quashing petition.

5. Patna High Court Cr. Misc. No.2461 of 2010 (7) dt.28-07-2012 Notice was sent to Opposite Party No. 2 by both the processes by this Court and ordinary notice served on the son of sister of Opposite Party No. 2 whereas A/D of registered cover was signed by the Opposite Party No. 2 herself. Despite service of notice, Opposite Party No. 2 did not choose to appear before the court and after that the matter was heard.

6. Learned