(1) Both the above stated petitions were ordered to be placed side by side vide order dated 18.01.2012 passed in Cr. Misc. No. 29494 of 2010 and accordingly, both the above stated petitions were heard together and a common order is being passed in both the above stated petitions.

(2) Petitioner, while invoking the extra ordinary jurisdiction of this Court, prayed for quashing the entire criminal prosecution arising out of Complaint Case No. 246 C of 2009 as well as order dated 17.04.2009 passed by Sri Uma Shankar, Judicial Magistrate Supaul in Complaint Case No. 381 C of 2009 by which and whereunder the learned Judicial Magistrate having found prima facie case under Section 138 of Negotiable Instrument Act ordered to issue summons against the petitioner.

(3) Opposite Party No. 2, namely, Brajesh Kr. Singh filed Complaint Case No. 246 C of 2009 as well as Complaint Case No. 381 C of 2009 against the petitioner and three others alleging therein, inter alia, that petitioner and other accused established Anushri Cold Storage Private Limited at Katihar. Accused no. 1, namely, Sharad Gaur was Managing Director of the aforesaid cold storage whereas petitioner and accused no. 3, namely, Pritam Kumar Choudhary were Board of Directors of the aforesaid cold storage. He further alleged that accused no. 1, namely, Sharad Gaur had visiting term with one Kaushal Kumar Tiwary who happened to be friend of Opposite Party No. 2. The Opposite Party No. 2 also developed intimacy with accused no. 1. The petitioner and other accused were in need of money to run the business of cold storage and accused no. 1 namely, Sharad Gaur requested the Opposite Party No. 2 to give rupees five lacs in loan with assurance that he would return the aforesaid amount to him within one year and having relied upon the aforesaid assurance, Opposite Party No. 2 gave rupees four lacs as well as his son, namely, Piyush Kumar gave rupees one lac in cash to accused no. 1 on 24.11.2006 and later on, accused no. 1 gave seven cheques on 15.12.2008 to Opposite Party No. 2 and the aforesaid cheques were issued in respect of account no. 8542 stood in the name of Anushri Cold Storage Private Limited. The Opposite Party No. 2 deposited five cheques amounting to Rs. 2, 09,000/- in S.B. Account No. 11114010101 on 17.12.2008 but the concerned bank returned all the aforesaid five cheques to Opposite Party No. 2 with information that the fund was insufficient and after that Opposite Party No. 2 gave a legal notice to accused no. 1 on 24.01.2009 but petitioner and other accused did not give any response to the aforesaid notice nor notice returned to the Opposite Party No. 2 and after that Opposite Party No. 2 filed complaint case bearing Complaint Case No. 246 C of 2009 against the petitioner and other accused. The Opposite Party No. 2 further alleged in Complaint Case No. 381 C of 2009 that rest two cheques were deposited by him on 03.02.2009 in State Bank of India branch Katihar but again the aforesaid two cheques became bounced as there was insufficient money in the account of petitioner and other accused and, thereafter, after giving legal notice, the Opposite Party No. 2 again filed complaint case bearing Complaint Case No. 381 C of 2009 within statutory period.

(4) In Complaint Case No. 246 C of 2009, the matter is still pending for enquiry whereas in Complaint Case No. 381 C of 2009, having found prima facie case under Section 138 of Negotiable Instrument Act concerned court ordered to issue summons against the petitioner and other accused.

(5) Notices were issued to Opposite Party No. 2 and Opposite Party No. 2 filed counter affidavit.

(6) Learned counsel appearing for the petitioner submits that according to complaint case itself, the accused no. 1, namely, Sharad Gaur took loan in question and issued cheques in his personal capacity and, therefore, no responsibility can be fixed upon the petitioner. It is further contended by him that it is well settled principle of law th