C.P. Sinha, J.,

This application under section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code) is on behalf of accused Suresh Prasad Sinha, alias Surendra Prasad Sinha. The prayer is to quash the prosecution pending against the petitioner in the court of Mr. J. Jha, Munsif Magistrate, First Class, Purnea in Case No. C. A. 543 of 1970. The facts giving rise to this application are as under mentioned.

2. On 26.8.1970, this opposite party (Nageshwar Pathak) filed a petition of complaint in the court of the Sub-divisional Magistrate, Purnea alleging that the accused was known to him for the last 2 to 3 years: On 2.7.1970 at 5 P.M. the accused came to the complainant's place with a cheque book of the State Bank of India, Purnea and requested him (complainant) to deliver to him a sum of Rs.1200/- of which he was in urgent need. In course of those talks the accused assured him that in lieu of that amount he would issue to him a cheque of 3.7.1970 on the State Bank of India, Purnea which he could encash on its presentation that day (3.7.1970) as he had sufficient money to his credit in the Bank to cover the cheque. On that representation of the accused, the complainant advanced him Rs.1200/- in cash and the accused drew up a cheque for that amount on the State Bank of India, dated 3.7.1970, and made it over to him on that very occasion, i.e., 2.7.1970 at 5 P.M. When on 3.7.1970 the complainant presented that cheque to the Bank it was dishonored for the reason that the accused had no money in the Bank. On these allegations the complainant alleged that he had been cheated by the accused in that manner because he (accused) had full knowledge of having no money in the Bank and that the cheque which he was issuing to the complainant for the amount 'so paid to him was bound to be dishonored. It was further said that the subsequent attempt of the complainant to recover that money from the accused did not bear any fruit and he (accused) put off the matter on some pretext or the other having had dishonest design not to pay back the money. Accordingly, he requested that action should be taken against him under section 420, Indian Penal Code.

3. The Sub-divisional Magistrate, on receiving that complaint, examined the complainant that very day and took cognizance under section 420, Indian Penal Code in the case against the accused and transferred it to another Magistrate for trial. There is no dispute between the parties that after this cognizance the accused moved in revision (Criminal Revision No. 240 of 1970) before the Sessions Judge, Purnea for getting that cognizance quashed. That revision was, however, dismissed by the Sessions Judge in his order dated 11.5.1972 refusing to make a reference to the High Court for that purpose.

4. In the trial court, for the prosecution, 5 witnesses including the Bank Manager and the Complainant (P.WS. 3 and 5) were examined. They were also cross-examined before charge. The dishonored cheque (Ext 2) as also the Bank's refusal to honor it for the reason that the drawer had no sufficient money to cover it (Ext. 1) as also the pleader's notice sent by the complainant to the accused (Ext. 3) were also produced. The Magistrate, after having considered "those materials, has framed charge under section 420, Indian Penal Code against the accused in the following terms:

"You Surendra Prasad Singh on or about the 2nd day of July, 1970 cheated Nageshwar Pathak the complainant by dishonestly inducing him to deliver Rs.1200/- (twelve hundred) in cash to you for which you gave him cheque no. BP/17 372460 on State Bank of India, Branch at Pumea by putting date therein 3.7.70. You further assured him that the said cheque would be honored on presentation at the Bank though you knew that you had not the said amount in your account and that the cheque would be dishonored."

On the charge being read over to the accused, he pleaded not guilty and later moved the present application for quashing