The order taking cognizance under Section 138 of the Negotiable Instruments Act must include essential details regarding the cheque return memo and the disputed amount.

JUDGMENT :

Sanjay Kumar Dwivedi, J.

1. By order dated 13.06.2017 notices were directed to be issued upon the O.P. No. 2. Fresh notice was issued on 13.05.2022. It has been referred in the order dated 03.07.2023 that notice on behalf of the O.P. No. 2 has been received by the staff and in view of that, on that day, fresh notices were directed to be issued upon the O.P. No. 2 and liberty was provided to the petitioner to serve personally and file supplementary affidavit. By order dated 16.08.2023 the O.P. No. 2 was directed to serve through learned lawyer who was appearing before the learned court on behalf of O.P. No. 2 and by order dated 12.09.2023 the petitioner was directed to take substituted steps of notice by way of paper publication and pursuant to that, the petitioner has filed the affidavit annexing the paper publication. In spite of that, the O.P. No. 2 has not appeared. In view of that, this matter is being heard in absence of the O.P. No. 2.

2. Heard Mr. Jitendra S.Singh, the learned counsel appearing on behalf of the petitioner and Mr. Abhay Kumar Tiwari, the learned counsel appearing on behalf of the respondent State.

3. This petition has been filed for quashing of the entire criminal proceeding including order taking cognizance arising out of C.P. Case No. 876 of 2012, corresponding to T.R. No. 836 of 2012, pending in the court of learned Judicial Magistrate, 1st Class, Dhanbad.

4. Mr. Jitendra S.Singh, the learned counsel appearing on behalf of the petitioner submits that in the complaint petition there is allegation of not refunding a total sum of Rs.3,77,75,000/-. He submits that the allegations are there that the cheque of Rs.1,50,00,000/- was dishonoured. He submits that the said amount has already been returned by the petitioner which is admitted in evidence before charge at paragraph No. 45 of the statement of Ashok Khetan. He submits that is why O.P. No. 2 is not appearing before the court.

5. Mr. Tiwari, the learned counsel appearing for the respondent State submits that in paragraph No. 43, 44 and 45 of cross examination said Ashok Khetan has stated that the amount with regard to cheque in question has not been received. He submits that in view of that the disputed fact is there with regard to the payment.

6. In view of above, it appears that there is disputed questions involved in the matter with regard to payment of the amount with respect to the cheque in question. The case is arising under section 138 of the Negotiable Instruments Act. The learned court has been pleased to take cognizance by order dated 06.06.2012. In such a case at least the date of return memo of cheque whether it is within time or not and the amount in question was required to be disclosed in the said order taking cognizance which is lacking in the order taking cognizance.

7. Accordingly, order taking cognizance dated 06.06.2012 arising out of C.P. Case No. 876 of 2012, corresponding to T.R. No. 836 of 2012, pending in the court of learned Judicial Magistrate, 1st Class, Dhanbad is set aside.

8. The matter is remitted back to the learned court to pass a fresh order in accordance with law.