Rajiv Roy, J. – Heard Mrs. Bela Singh, learned Counsel for the petitioner and Mr. Ravindra Kumar Shukla, learned Counsel appearing for the opposite party.

2. The present petition has been preferred for the quashing of the order dated 08.09.2014 passed by the learned Judicial Magistrate-1st Class, Muzaffarpur in connection with Trial No. 4870 of 2015 (arising out of Complaint Case No. 2549 of 2013) by which the cognizance has been taken under section 138 of the Negotiable Instrument Act (henceforth for short ‘the N.I. Act’).

3. The facts of the case leading to the present petition is/are as follows: –

4. The opposite party no. 2, Vivek Kumar filed complaint case alleging that: –

(i) the petitioner came to his house on 10.03.2013 and made a request for a loan amount of Rs. 8 lakhs. As they knew each other, the payment was made on 15.03.2013 and the petitioner assured to return the same by 15.06.2013.

(ii) as despite the said period crossed, no payment made, he made a request on 26.06.2013 which followed the issuance of Cheque No. 233717 dated 26.06.2013. However, upon production of the cheque before the Bank of Maharaja, Muzaffarpur, it was dishonoured for want of insufficient fund.

(iii) having received the information from the Bank on 28.06.2013, a legal notice was sent on 26.07.2013 and as there was no response, the complaint.

(iv) this led to filing of the Complaint Case No. 2549 of 2013 in which after enquiry under Section 202 of the Cr.P.C., the cognizance has been taken under Section 138 of ‘the N.I. Act’ on 08.09.2014.

5. Aggrieved by the said order dated 08.09.2024, the present petition.

6. Mrs. Bela Singh, learned Counsel for the petitioner submits that the dates in the case are not in dispute but are important to be recorded which are as follows: –

(i) on 26.06.2013, the cheque was issued;

(ii) the complainant received information from the Bank regarding the non-clearance due to insufficient fund came on 28.06.2013;

(iii) legal notice was sent by the complainant to the petitioner on 26.07.2013;

(iv) the complaint was filed against him on 17.09.2013.

7. It is her submission that so far as the issuance of cheque of Rs. 8 lakhs is concerned, the same was stolen by the opposite party no. 2 as he used to come to petitioner’s home and for that he lodged Muzaffarpur Sadar P.S. Case No. 287 of 2013 on 11.08.2013 under Sections 406, 420 and 379 of the Indian Penal Code against the complainant (Annexure-3 to the supplementary affidavit). She submits that in the said case, charge sheet was submitted against the opposite party no. 2 vide charge sheet no. 295 of 2016 dated 14.04.2016 under section 380 of the Indian Penal Code.

8. The further submission is that after FIR was lodged on 11.08.2013, to save his skin, the present complaint has been filed. Learned Counsel has taken this Court to Section 142 of ‘the N.I. Act’ which read as follows: –

“142. Cognizance of offences. – (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974). –

(a) no court shall take cognizance of any offence punishable under Section 138 except upon a complaint, in writing, made by the payee of, as the case may be, the holder in due course of the cheque;

(b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138:

Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court the he had sufficient cause for not making a complaint within such period;

(c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under Section 138.

(2) The offence under section 138 shall be inquired into and tried only by a court within whose local jurisdiction,-

(a) if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is