The petitioner has invoked the inherent jurisdiction of this Court for quashment of the entire criminal proceedings arising out of Complaint Case No. 903 of 2007 including the order impugned dated 8.7.2010 passed by Sri. O.N. Chaudhary, Judicial Magistrate, 1st Class, Palamau at Daltonganj by which prima facie materials were found against the petitioner Shahid Ali for the alleged offence under Section 138 of the Negotiable Instruments Act, 1881 and he was called upon to answer the substance• of accusation to be explained to him.

2. The prosecution story in short, as unfolded in Complaint Case No. 903 of 2007 filed on behalf of the Complainant Opposite Party No. 2 herein before the Chief Judicial Magistrate, Palamau at Daltonganj, was that he was a contractor of Kendu leaves in the district of Latehar. The accused-petitioner also used to deal in Mohulan leaves in the same district and being the businessmen both were known to each other and had also transaction of money between them. It was alleged in the complaint petition that on 17.4.2007 the accused-petitioner Shahid Ali approached him and requested to lend him Rs. 4 lakhs for business requirement and in lieu thereof he delivered a cheque no. 295158 dated 17.4.2007 as collateral security stating that there was no money in his account but that will come in his account within 3/4 months and that the amount shall be returned to him after sale of Mohulan leaves. Upon such assurance and on presentation of cheque referred to above the complainant delivered a sum of Rs. 4 lakhs in cash to the accused-petitioner and kept the cheque with him. When the accused-petitioner did not return money in cash within time framed, the complainant then deposited the cheque on 2.8.2007 but it returned unpaid due to "insufficiency of fund" of the account holder in his account. The complainant then talked to the accused-petitioner on telephone and communicated about bouncing of the cheque whereupon the accused-petitioner requested to present the cheque once again after five days as he would arrange the money in the meantime and accordingly, the complainant-opposite party No.2 again deposited the said cheque on 9.8.2007 but this time also the cheque, which was issued by the accused-petitioner, bounced for the similar cause due to "insufficiency of fund".

Thereafter a legal (demand) notice was sent to the accused-petitioner by the complainant calling upon to return the money but no satisfactory answer < was given to such notice and then he lodged the complaint.

3. Mr. Jai Prakash, the learned Sr.Counsel submitted that after statements of the complainant recorded on his solemn affirmation an enquiry was conducted and during .enquiry the complainant filed photocopies of cheque No. 295158, deposit slips of the said cheque on 2.8.2007 and 9.8.2007, Bank memo dated 9.8.2007 and legal (demand) notice dated 18.8.2007 with its postal receipt.

4. Mr. Jai Prakash, further submitted that the complainant-opposite party No. 2 admitted that he had presented the cheque on 2.8.2007 for the first time which bounced, however, without any action being taken by him against the accused petitioner' under provision of law by attracting his attention either way. He then presented the cheque in the said bank on 9.8.2007 which was again returned unpaid with the same endorsement of "insufficiency of fund".

5. The learned Sr. Counsel submitted that the complainant had admitted in the complaint petition that he had sent legal (demand) notice to the accused-petitioner after his cheque was bounced for the second time and the alleged money could not be returned to him but the service of notice if at all, could not be produced so as to substantiate that there was valid service and even then money was not paid back. The learned Sr. Counsel relied on the decision reported in (2009)1SCC 720 [: 2009(2) JLJR (SC)44]. The Supreme Court of India in Harman Electronics Private Limited and Another vs. National Panasonic India Private Ltd.

held:-