Chandra Shekhar Jha, J. –

CRIMINAL MISCELLANEOUS No. 31347 of 2015

Heard learned counsel for the petitioner and learned counsel for the respondents.

2. The present quashing petition has been preferred to quash the order dated 08.05.2015 passed in C.R. No. 90/75 of 2015, where learned Judicial Magistrate, Ist Class Madhubani took cognizance for the offences punishable under Sections 420 of the Indian Penal Code read with Section 138 of the Negotiable Instrument Act (in short Act) against the petitioner.

3. Opposite Party No. 2 joins the present proceedings.

4. From the crux of complaint petition it appears that complainant filed a complaint case on 29.01.2015 in the court of learned Chief Judicial Magistrate, Madhubani stating therein that he has a shop of Hardware, cement etc. situated at Benipatti Bazar, where the date of occurrence i.e. on 05.08.2014 accused/petitioners came to his house and requested him to lend iron rod and cement for which they had no money at present and due amount shall be paid within a month. At the request of accused complainant, complainant agreed to give the goods on credit like kamdhenu iron rod worth Rs. 44,000/-, four hundred bags cement total amounting to Rs. 2,87,013/- and accordingly the accused persons promised to pay the due amount within a month. It is further alleged that when complainant demanded due amount after a month accused person delayed the matter either on one or another pretext for a long and finally on 12.09.2014 in presence of accused no.2 accused no.1 issued a cheque for Rs. 2,87,013/- of ICICI Bank, Darbhanga in favour of Mishra Hardware and the cheque was presented for encashment. Cheque was returned on account of insufficiency of balance. It is further alleged that after returning the cheque from the bank complainant sent a registered legal notice on 11.11.2014 but no reply was made to the aforesaid notice. Thereafter again a reminder to the earlier legal notice was sent but no reply was made. On 01.01.2015 the accused persons saw the complainant in Benipatti market and asked for payment of due amount, where they became angry and said that they will not pay a penny and assaulted. Thereafter accused no.1 took a shawl of Rs. 1500/- and accused no.2 took 0.8 grams of gold ring of Rs. 1500/- along with automatic titan watch of Rs. 1500/-. After the aforesaid occurrence, complainant made a complaint, firstly to the Superintendent of Police, where no action was taken and forced him to file the present complaint.

5. Learned counsel for the petitioner submitted that impugned order of cognizance appears bad in eyes of law only for the reason that mandatory provision of Section 142 of the Act not appears to be followed before filing complaint in the present case and said facts were completely ignored by trial court while taking cognizance. It is submitted that cheque dated 12.09.2014 upon presentation before the concerned bank was dishonored in want of insufficient fund on 15.10.2014. The fact of dishonored cheque was brought to the notice of drawer, through notice dated 11.11.2014 and also through, second notice dated on 01.12.2014. It is pointed out that postal receipt of earlier notice dated 11.11.2014 was not brought on record, which simply suggests that no such notice was issued to the petitioner. It is further pointed out that the complaint in this case was filed on 20.01.2015 i.e., after about 50 days of issuing the notice. It is submitted that for issuance of notices and filing of present complaint petition was made without following mandatory time period as provided under Section 142 of the Act and as such impugned order of cognizance is bad in eyes of law and thus same is fit to quashed and set aside.

6. While travelling over the argument learned counsel submitted that as there is no such allegation as to cheat complainant from the very inception cognizance under Section 420 of the IPC also appears bad in the eye of law. In support of the submissions learned counsel relied upon t