ORDER

1. The petitioner has approached this Court under Section 482 of the Code of Criminal Procedure to quash the order dated 5.3.2008 passed in C.A. No.1052 of 2007 by the court of Sri R. Kumar, Judicial Magistrate, First Class, Patna City, Patna, summoning the three accused, named in the complaint petition, including the petitioner, on inquiry under Section 202 of the Code of Criminal Procedure, finding prima facie case under Section 138 of the Negotiable Instruments Act, 1881.

2. In brief, the case is that the opposite party no.2, Kumar Anand Ranjan, filed the C.A. No.1052 of 2007 in the court of the Additional Chief Judicial Magistrate, Patna City, Patna, against the accused including the petitioner alleging therein that he is the dealer of MAA SHITLA ESCORTS and used to do the business of selling the Tractor on cash and also on credit by furnishing security by the purchaser of the Tractor and its tailor etc. The accused, named in the complaint petition, including the petitioner visited to his office at Bari Pahari on 17.9.2007 and purchased a Tractor and Hydrolic Tractor amounting to Rs.4,48,492/-. At that time, the accused persons made payment of Rs.1,25,000/- through bearer cheuqe and for rest amount of Rs.3,00,000/- postdated account payee cheque bearing no.476732 dated 17.10.2007 of the Punjab National Bank was issued by the accused, Deepak Kumar, with assurance to deposit the said amount within a week in his account. On 17.10.2007, the opposite party no.2 was requested by the accused persons to meet at his office at 4 P.M. but the accused persons did not reach. Thereafter, the cheque bearing no.476732 issued by the accused Deepak Kumar was presented on 23.10.2007 in the Bank for clearance and the said cheque remained with the Bank till 26.11.2007 but on 27.11.2007, the said cheque was dishonoured and returned through Memorandum No.1525 of Dhanarua Punjab National Bank, Patna, showing insufficient fund and also incomplete signature of the drawer. It is also alleged by the opposite party no.2 that the accused persons entered into an agreement for purchase of a Tractor on stamp paper on 17.9.2007, which was signed by the accused, Madhukar Anand, Deepak Kumar and one Shyam Kishore Sharma. On 7.12.2007, the opposite party no.2 received a notice of the accused through advocate, Sri Arjun Sharma, acknowledging about the dishonour of the cheque. Thereafter, the opposite party no.2 on 8.12.2007 replied the notice with a request for payment of the amount of the cheque but all in vain. As such, the accused persons, named in the complaint petition, including the petitioner under conspiracy cheated the opposite party no.2 to the tune of Rs.3,00,000/- by issuing the cheque without sufficient money in the account.

3. After filing of the complaint petition by the opposite party no.2, the court of Sri R. Kumar, Judicial Magistrate, First Class, Patna City, Patna, summoned the accused, named in the complaint petition, including the petitioner, on inquiry under Section 202 of the Code of Criminal Procedure, finding prima facie case under Section 138 of the Negotiable Instruments Act, 1881 through the impugned order dated 5.3.2008.

4. Learned counsel appearing on behalf of the petitioner made submission that from the complaint petition, it would appear that the cheque, which is said to be dishonoured, was not issued by the petitioner rather the same was issued by the accused, Deepak Kumar, who happens to be the son of the petitioner. In spite of that the opposite party no.2 has made accused to the petitioner with an ulterior motive. It has further been submitted that it would appear from Annexure-„4? to the reply of the counter affidavit that the agreement deed regarding purchase of the tractor has not been signed by the petitioner rather the same has been signed by the accused, Madhukar Anand, in which he has detailed about issuing the cheque, which is said to be dishonoured.

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