Rajeev Ranjan Prasad, J. – The present writ application has been preferred for setting aside the order dated 09.07.2013 passed by learned Chief Judicial Magistrate, Sitamarhi in Complaint Case No. 1086/2013 by which a direction was given to the Officer-in-Charge of Sitamarhi Police Station to lodge a First Information Report. The learned Chief Judicial Magistrate, Sitamarhi passed the impugned order dated 15.07.2013 in exercise of his power under Section 156(3) of the Code of Criminal Procedure (hereinafter referred to as the “Cr.P.C.”). By virtue of the impugned order the Officer-in-Charge, Sitamarhi Police Station has registered Sitamarhi P.S. Case No. 695/2013 registered under Section 138 of the Negotiable Instruments Act, 1881 and Section 406 & 420 of the Indian Penal Code.

2. Learned counsel for the petitioner at the outset has drawn attention of this court towards order dated 17.02.2016 passed by a learned co-ordinate Bench of this court by which while granting time to the learned counsel representing the State to seek instruction, an interim order directing that further proceedings in connection with Sitamarhi P.S. Case No. 695/2013 shall remain stayed. It has however been made clear that ongoing investigation of the aforesaid case has not been stayed.

3. Learned counsel for the petitioner submits that on a bare perusal of the written complaint submitted by Opposite Party No. No. 2 in the court of learned Chief Judicial Magistrate, Sitamarhi it would appear that no case of cheating or criminal breach of trust is made out against the petitioner. It is submitted that so far as the offences alleged under Section 138 of the Negotiable Instrument Act, 1881 is concerned, it is a compoundable offence and the petitioner having already paid the entire amount of Rs. 48 Lakhs which was covered under the two cheques in question need not be prosecuted by virtue of the present F.I.R.

4. It is stated that as per the allegations made in the First Information Report the informant has himself stated in his complaint that because his Firm was not fulfilling the conditions of notice inviting tender published by the Registration, Excise and Prohibition Department, Government of Bihar in the year 2012, he had approached the accused and requested him orally to participate in the tender on the basis of the experience certificate of the Firm of the accused and for this purpose the informant agreed that he will pay the entire amount required for this purpose. The allegation is that the informant had paid Rs. 32 Lakhs in cash to the accused in presence of witness Nos. 1, 2 & 3 and had further paid a sum of Rs. 48 Lakhs through account payee cheques but when the tender was opened and the Firm of the accused could not get the work, the informant requested the accused to refund his money, the accused issued two cheques of Rs. 24 Lakhs each in favour of the informant but both the cheques stood dishonoured on presentation for the reasons “insufficient funds”. It has been alleged that after the dishonour of the two cheques the informant approached the accused many times but the accused kept on delaying the matter, on this the informant sent a legal notice to the accused but despite service of legal notice no reply was sent on behalf of the accused. On these grounds the complaint petition was filed before the learned Chief Judicial Magistrate, Sitamarhi.

5. Learned counsel for the petitioner submits that prior to filing of the application under Section 156(3) Cr.P.C. the complainant did not follow the procedures as envisaged under Section 154(1) and Section 154(3) of the Cr.P.C. It is also submitted that in the complaint petition the complainant neither made any statement with regard to compliances as regards Sections 154(1) and 154(3) Cr.P.C. nor did he submit any affidavit.

6. Learned counsel submits that in the case of Priyanka Srivastava vs. State of U.P. and Ors. reported in 2015(6) SCC 287 the Hon’ble Apex Court has held that while passing order under