Patna High Court
Sunil KumarversusState Of Bihar and Anr
- Decided
- Disposal
- DISMISSED
- Bench
- SHAILENDRA SINGH
Holding
The petition under Section 482 Cr.P.C. is dismissed as there is a prima facie case under Section 138 and no illegality in the lower court's order.
Summary
Sunil Kumar filed a petition under Section 482 of the Cr.P.C. seeking to quash the order of the Chief Judicial Magistrate that had taken cognizance of an offence under Section 138 of the Negotiable Instruments Act. The petitioner argued that the proviso to Section 138, clause (b), requiring a statutory notice, was not complied with, although he admitted issuing the cheques and their dishonour. The respondent, the cheque holder, contended that the cheques were presented within time, the bank returned them for insufficient funds, and statutory notices were duly served, with a one‑month time‑grant also given. The High Court examined the submissions and found that the issuance and dishonour of the cheques were undisputed and that a prima facie case existed, leaving the question of compliance with the notice provision to the trial court. Consequently, the Court held there was no merit in the quash petition and dismissed it.
Issues considered
- Whether the petitioner complied with clause (b) of the proviso to Section 138 of the Negotiable Instruments Act regarding statutory notice.
- Whether the High Court can quash the order of the Chief Judicial Magistrate taking cognizance of an offence under Section 138.
Legislation cited
- Code of Criminal Procedure — s. 482
- Negotiable Instruments Act — s. 138
Subjects
- Negotiable Instruments Act
- Section 138
- cheque bounce
- statutory notice
- Section 482 Cr.P.C.
- quash petition
- prima facie case
- criminal procedure
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.22997 of 2016
Arising Out of PS. Case No.-3257 Year-2011 Thana- VAISALI COMPLAINT CASE District-
Vaishali
======================================================
Sunil Kumar son of Late Jaylal Singh, resident of Mohalla- Ramna Road,
near Devi Sthan Gurudwara, P.S.- Muzaffarpur, District- Muzaffarpur.
... ... Petitioner/s
Versus
1. The State of Bihar
2. Umesh Kumar Rai, Proprietor M/s India Nursery, Jathuan, Bog Tola, P.O.-
Hajipur, P.S.- Hajipur Town
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner : Mr. Madan Jeet Kumar, Advocate
For the O. P. No.2 : Mr. Vinod Kumar, Advocate
For the State : Mr. Ram Sevak Choudhary, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE SHAILENDRA SINGH
ORAL ORDER
7 02-02-2026 Heard learned counsel for the parties.
2. The instant application has been filed by the
petitioner under Section 482 of the Code of Criminal Procedure
(hereinafter referred to as ‘Cr.P.C.’) seeking quashing of the
order dated 16.07.2014 passed by the Court of the Chief Judicial
Magistrate, Vaishali at Hajipur in Complaint Case No. 3257 of
2011, corresponding to Trial No. 7587 of 2014, whereby
cognizance of the offence under Section 138 of the Negotiable
Instruments Act has been taken against the petitioner.
3. While assailing the impugned order, Mr. Madan
Jeet Kumar, learned counsel appearing for the petitioner has
mainly based his arguments on the alleged non-compliance with
Patna High Court CR. MISC. No.22997 of 2016(7) dt.02-02-2026
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clause (b) of the proviso appended to Section 138 of the
Negotiable Instruments Act. Though he has admitted the
issuance of the alleged cheques by the petitioner and their
dishonour by the concerned bank.
4. On the other hand, Mr. Vinod Kumar, learned
counsel appearing for Opposite Party No. 2 submits that the
cheques allegedly issued by the petitioner were presented before
the bank within the prescribed time limit under the Negotiable
Instruments Act. Upon dishonour, the said cheques were
returned by the concerned bank on account of insufficiency of
funds in the petitioner’s bank account. Thereafter, Opposite
Party No. 2 issued a statutory notice to the petitioner through his
counsel, calling upon him to make the payment. In response, the
petitioner sought one month’s time to make the payment, which
was duly granted by Opposite Party No. 2. However, upon
failure of the petitioner to make payment even after the expiry
of the said period, Opposite Party No. 2 again issued a notice
dated 10.10.2011 through his counsel. In view of these facts, it
cannot be said that there was any non-compliance with clause
(b) of the proviso to Section 138 of the Negotiable Instruments
Act. It is further submitted that the case is presently at the stage
of evidence before the trial court.
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3/3
5. Considering the aforesaid submissions and the
averments made in the complaint filed by Opposite Party No. 2,
this Court is of the view that a prima facie case for the offence
punishable under Section 138 of the Negotiable Instruments Act
is made out against the petitioner. The issuance of the alleged
cheques by the petitioner in favour of Opposite Party No. 2 and
the dishonour thereof are not in dispute. So far as compliance
with the mandatory provisions of the Negotiable Instruments
Act is concerned, the same is a matter to be examined by the
trial court after appreciation of the evidence adduced by both the
parties. Accordingly, this Court finds no merit in the present
application and no illegality in the impugned order. The instant
petition is, therefore, dismissed.
(Shailendra Singh, J)
maynaz/-
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