ORDER

B.B. Mangalmurti, J. - Heard learned counsel for the petitioner and learned A.P.P. for the State.

2. Instant application has been filed for quashing the order dated 09.07.2008 passed by Sessions Judge, Dhanbad in Criminal Revision No. 155 of 2008 dismissing the revision by confirming the order passed by the court of Rama Kant Mishra, Judicial Magistrate, Dhanbad in C.P. Case No. 1780 of 2007 where the court has dismissed the complaint petition which was filed under section 138 of the Negotiable Instruments Act as also under Sections 406 and 420 of the Indian Penal Code.

3. The short fact of the case is that the complainant has let out his premise to the accused Krishnendu Kumar Chatterjee on rent situated at Bank More, Dhanbad, on monthly rent of Rs. 3500/- starting from the month of January, 2006. The accused paid Rs. 3500/- as advance for the month of January, 2006 and thereafter started residing in the premise with his family. Later on, accused did not make payment of monthly rent and on several requests he issued a cheque of Rs. 20,000/- bearing No. 231164 of IDBI Bank on 01.07.2006 payable to the complainant against the payment of arrear of rent. The further case is that the said cheque was returned unpaid with endorsement of ''Insufficient Fund''. Thereafter, complainant informed the accused who paid the cheque amount in instalment by cash. Subsequently the rent of the premises was enhanced to Rs. 4000/- per month from the month of January, 2007, as agreed by the parties. Accused again issued a cheque of Rs. 45,000 in favour of complainant bearing no.103741 dated 15.05.2007 of IDBI Bank. When this cheque was presented by the complainant, it again returned unpaid with the endorsement ''Insufficient Fund'' on 19.05.2007. Since the accused was having knowledge that he has no balance in his Bank account nor he has taken any step to honour the cheque and arrange the payment as required under section 138 of the Negotiable Instruments Act, so he has committed an offence under Section 138 Negotiable Instruments Act as well as under Sections 406 and 420 of the Indian Penal Code. Accused was duly informed about the dishonour of the cheque upon which accused assured that it will be positively paid on its representation before the Bank. On his persuasion, the complainant again presented the same cheque before the Bank but it was again returned unpaid on 28.06.2007. Thereafter, complainant served a notice of demand through his lawyer vide notice dated 26.07.2007 which was sent by courier. After receipt of notice of demand, accused approached the complainant and promised to make payment of the amount of dishonoured cheque as soon as possible within a week so the complainant waited for the payment. Accused took time but also replied to the notice denying all the liabilities and debt. The accused made false promise only for the purpose to cause delay and to avoid any criminal case to be filed under Negotiable Instruments Act. The intention of accused was to cause wrongful gain and to cause wrongful loss to the complainant. As the accused has misappropriated the rent amount, he has committed criminal breach of trust and hence committed offence under section 138 of the Negotiable Instruments Act and under Sections 406 and 420 of the Indian Penal Code also. Therefore, prayer was made to take cognizance under the provisions of the Negotiable Instruments Act as taking cognizance is not a bar as per the explanation under section 142(b) of the Negotiable Instruments Act.

4. Counsel for the petitioner submitted that the Magisterial court has considered the first date of dishonour i.e. 19.05.2007 and counted the period of 30 days and found that the notice dated 26.07.2007 issued by the complainant was much beyond the prescribed period of 30 days, so he has not found prima facie case to summon the accused under section 138 of Negotiable Instruments Act. He also submitted that the court below has not taken into consideration that the same ch