ARUN KUMAR, J.:–The quashing application has been filed by the petitioner under Section 482 of the Code of Criminal Procedure, 1973 challenging order dated 29.1.2009 passed by Judicial Magistrate 1st Class, Gaya in Complaint Case No.198 of 2008 whereby he has taken cognizance of the offence under Sections 406 and 420 of the Indian Penal Code as well as under Section 138 of N.I. Act, 1881.

2. The complainant’s case as narrated in the complaint petition in brief is that on 14.4.2008, the accused/petitioner entered into a contract with the complainant who deals in bamboo business for supplying bamboos more than 2000 in numbers and ballas for the period 14.4.2008 to 25.4.2008 the total value of hired article is 1,20,050/- the rent for hired period was fixed Rs.13,000/-. On 14.4.2008 on the day of entering into contract the accused paid Rs.3,000/- in cash against the rent amount and a cheque of Rs.25,000/- for payment of rest rent amount with assurance to pay rest rental charges in cash on 25.4.2008, thereafter, the cheque would be returned back to him; even after expiry of the period neither hired articles were returned back to him nor rent was paid in cash so he presented the cheque earlier given to him by the accused in his Bank on 2.6.2008 but cheque was dishonoured and returned back to the complainant on 24.6.2008 with remark that amount could not be credited due to insufficient fund in the account of borrower. Consequently, on 2.7.2008 complainant sent legal notice to the accused to pay the cheque amount to him which was received by him on 8.7.2008 but within 15 days the amount was not paid back so filed the complaint case on 23.7.2008.

3. Learned counsel appearing on behalf of the petitioner submits that false allegation has been levelled in the complaint, the rent of the hired articles was only Rs.3,600/- out of which Rs.3000/- was paid in cash only Rs.600/- remained due. As far as issuance of cheque of Rs.25,000/- is concerned, that was given to the complainant as a security. It is also contended that the desired number of bamboos and ballas were not supplied and the supplied articles were returned back to the complainant, so in fact the petitioner was cheated by the complainant. The petitioner requested to return the cheque given in security but it was not returned so he filed a complaint case no.887 of 2008 on 9.6.2008 prior to the filing of the present complaint, so no prima facie case under Sections 406 and 420 of the I.P.C. and 138 of N.I. Act is made out.

4. Learned Additional Public Prosecutor supported the impugned order submitting that prima facie case of cheating, breach of trust and prima facie case Section 138 of N.I. Act is made out in view of allegation levelled in the complaint petition.

5. Having considered rival submissions and on perusal of record, it appears that the allegations levelled in the complaint petition do constitute a prima facie case under Sections 406 and 420 of I.P.C. as well as under Section 138 of N.I. Act. The defence of the petitioner in this case cannot be considered at this stage. The complainant filed the case on 9.6.2008 whereas the complainant of the present case had submitted the cheque in the Bank for payment on 2.6.2008. The crux of the allegation is that the complainant supplied bamboos and ballas to the accused a proprietor of a tent house for certain period on rent. A part payment of rental charges was made in cash but for rest amount cheque of Rs.25,000/- was issued by the accused in favour of the complainant for discharge of his liability. However, he promised to pay the rent later on in cash, thereafter, cheque would be returned back. Further allegation is that neither the articles supplied on rent to the accused was returned back nor the remaining amount of the rental charges was paid in cash, so he presented the cheque which got bounced. Thereafter, he has followed the procedure of giving notice, within time as per Section 138 of N.I. Act. Even after receipt of notice within

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