IMPORTANT POINT
Application filed under S. 482 of Cr. PC, this Court does not have any occasion to look into defence of petitioner at this stage.

Rongon Mukhopadhyay, J.—Heard learned counsel for the petitioner and the learned counsel for the State.

2. No one appears on behalf of the opposite party No. 2.

3. The present application has been preferred for quashing the entire criminal proceeding in connection with Complaint Case No. 1322 of 2013 including the order dated 12.9.2013 passed by the learned Judicial Magistrate, Ranchi by which cognizance of the offence was taken under Section 138 of the Negotiable Instruments Act.

4. It appears that a complaint was filed by the opposite party No. 2 herein in which it was alleged that the petitioner had taken a friendly loan from him and had promised to repay the loan within a week and in discharge of the said debt, the petitioner had issued cheque No. 020187 of HDFC Bank for a sum of Rs. 8,00,000. It was further alleged that after the complainant presented the cheque before the Allahabad Bank, Harmu Colony Branch, Ranchi for encashment, it was returned with a note ‘Insufficient Funds’ and thereafter legal notice dated 7.5.2013 was sent to the petitioner, but since the amount was not returned even after issuance of notice, the petitioner preferred the present complaint case.

5. Mr. A. S. Dayal, learned counsel appearing for the petitioner has assailed the order taking cognizance by submitting that the petitioner does not have any account in HDFC bank and the cheque which was said to have been dishonoured does not bear the signature of the petitioner. He further submits that in fact it is one Jayant Jappu Jha from whom the petitioner had taken some loan and given cheques and the said Jayant Jappu Jha even after receiving the amount of Rs. 16,50,000 from the petitioner had kept some cheques with him and had set up the present complainant Arun Kumar to dishonestly encash the amount noted in the said cheque. He has further submitted that two legal notices were given by the counsel for the complainant and both were dated 7.5.2013. He further submits that there is no mention of any date on which the friendly loan is alleged to have been given or the place where the said loan was given. He has further submitted that in terms of the explanation to Section 138 of the Negotiable Instruments Act, there was no legal and enforceable debt or liability in order to file the complaint case.

6. The learned counsel for the State, on the other hand has submitted by referring to Annexure 5 to the main application that another case was instituted against the present petitioner by one Molay Chandra for dishonour of the cheque which was issued by the petitioner. He therefore submits that the petitioner seems to be a habitual defaulter and the questions raised by the petitioner in the present application cannot be decided by this Court, since those are the matters of trial.

7. After hearing the learned counsel for the petitioner and the learned counsel for the State and on going through the records, I find that an amount of Rs. 8,00,000 through cheque No. 020187 dated 13.3.2013 was issued by the petitioner in favour of the complainant, but after the same was deposited before the Bank, it was returned unpaid on account of insufficient funds. The legal notices which have been referred to by the learned counsel for the petitioner, although are similar in contents, but it appears from the legal notice dated 7.5.2013 which has been appended as Annexure 2 to the main application, that the same was with respect to cheque No. 791894 and cheque No. 791895.

8. The learned counsel for the petitioner in course of argument has referred to a judgment rendered by the Hon’ble Supreme Court in the case of Krishna Janardhan Bhat v. Dattatraya G. Hegde, (2008) 4 SCC 54 in which the conviction and sentence was set aside on the ground that there was no indication of any business transactions between the parties and the complainant had failed to produce any books of accounts or any other proof to show that he got so much money from the Bank. In the aforesaid judgment, the