Patna High Court
Ketan KumarversusState Of Bihar and Anr
- Decided
- Disposal
- ALLOWED
- Bench
- SANDEEP KUMAR
Holding
The magistrate’s dismissal was erroneous; the order is quashed and the case remitted for fresh consideration.
Summary
The petitioner, Ketan Kumar, filed a complaint alleging that the opposite party had issued a cheque for Rs.1,88,227 that later bounced, invoking Section 138 of the Negotiable Instruments Act as well as Sections 420 and 406 of the IPC. The magistrate dismissed the complaint on the ground that it was filed after a two‑and‑a‑half‑month delay, without examining the eight witnesses named in the complaint. The petitioner challenged this dismissal, arguing that the magistrate should have considered the witness statements and could have condoned the delay. Relying on Supreme Court precedent (Dilip Kumar v. Brajraj Shrivastava, 2023 INSC 670), the High Court held that the magistrate erred in not examining the witnesses and in dismissing the complaint without proper reasoning. Consequently, the High Court quashed the magistrate’s order and remitted the matter for fresh consideration of cognizance within two months.
Issues considered
- Whether the magistrate erred in dismissing the complaint on the ground of delay without examining the complainant’s witnesses.
- Whether the delay in filing the complaint can be condoned under the Criminal Procedure Code.
- Whether the order of the magistrate should be quashed and the case remitted for fresh consideration.
Legislation cited
- Code of Criminal Procedure, 1973 — s. 202, 203
- Indian Penal Code — s. 406, 420
- Negotiable Instruments Act — s. 138
Subjects
- quash order
- complaint dismissal
- Section 138 NI Act
- delay condonation
- witness examination
- Criminal Procedure Code
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.60248 of 2018
Arising Out of PS. Case No.-152 Year-2018 Thana- ROHTAS COMPLAINT CASE District-
Rohtas
======================================================
Ketan Kumar son of Sri Ashok Kumar Gupta, M/s Sunrays Trading Pvt. Ltd,
Resident of Mohalla- Ambedkar Chawk, Old G.T. Road, P.S.- Dehri T,
District- Rohtas.
... ... Petitioner/s
Versus
1. State Of Bihar
2. Tej Narayan Singh, S/o Jokhan Singh, Resident of Village- Dudhami
Datauli, P.S.- Indrapuri, District- Rohtas.
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr.Ramchandra Singh
For the Opposite Party/s : Mr.Sri Shyam Bihari Singh
======================================================
CORAM: HONOURABLE MR. JUSTICE SANDEEP KUMAR
ORAL ORDER
6 13-01-2026 Heard the parties.
2. The present application has been filed for quashing
the order dated 01.06.2018 passed by the SDJM, Dehri in
Complaint Case No. 152 of 2018 by which the court below has
refused to take cognizance against the opposite party no. 02
under Section 138 of the N.I. Act and 420, 406 of the Indian
Penal Code and dismissed the Complaint Case No. 158 of 2018
of the petitioner.
3. As per the prosecution case, the petitioner has
alleged that the opposite party no. 02 has bought ornaments
from his showroom worth Rs. 1,88,227/- and paid only Rs.
20,000/- and for balance amount paid a cheque bearing Cheque
No. 925126 on 10.12.2017 but when the petitioner tried to
Patna High Court CR. MISC. No.60248 of 2018(6) dt.13-01-2026
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encash the same, the bank has refused the same by issuing a
note that no contact number is available of the person who has
issued the cheque. Thereafter, the petitioner again and again
tried to encash the cheque but the issue remained the same.
Furthermore, the petitioner gave legal notice dated 5.3.2018 to
the opposite party no. 02 but the opposite party no. 02 has not
responded to the same and because of the same, the petitioner
went to the house of the opposite party no. 02 and the opposite
party no. 02 has assured him to pay the money but on
20.05.2018, the opposite party no. 02 came to the shop of the
petitioner and has said that he will not pay him the balance
amount.
4. It has been submitted by the learned counsel for the
petitioner that the complaint of the petitioner has been dismissed
by the learned Magistrate on the ground that the same has been
filed after two and a half months of the issuance of the pleader
notice.
5. Learned counsel for the petitioner has also relied
upon a judgment of the Hon’ble Supreme Court in the case of
Dilip Kumar Vs. Brajraj Shrivastava reported in 2023 INSC
670 and paragraph no. 4 of the same reads as under:-
We have carefully perused the order
dated 18 th September, 2008 passed by the learned
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Magistrate and carlier order of 22nd August, 2008.
Under sub-Section (1) of Section 202 of the Cr.P.C,
the learned Magistrate has a discretion either to
inquire into the case himself, or to direct a Police
Officer to investigate and submit a report. In this
case, he took recourse to the first option. A perusal
of the complaint shows that eight witnesses were
specifically named in the complaint. The learned
Magistrate did not examine any of them. In the
order dated 18th September, 2008, the learned
Magistrate has not recorded reasons for not
recording the statements of other witnesses
specifically cited in the complaint. The law is well
settled, which is found to have been reiterated in
the decision in the case of Mohinder Singh (supra).
After taking recourse to sub-Section (1) of Section
202 of the Cr. P. C, before dismissing a complaint
by taking recourse to Section 203 of the Cr.PC, the
learned Magistrate has to consider the statements
of the complainant and his witnesses. In this case,
the learned Magistrate has not examined the other
witnesses. The view taken by this Court in the case
of Nagawwa (supra) is no different.
6. Upon perusal of the records of the case and the
upon perusal of the judgment of the Hon’ble Supreme Court this
court is of the view that the Magistrate should have examined
the witnesses and thereafter should have considered as to
whether cognizance can be taken after condoning the delay in
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filing the present complaint but the Magistrate has dismissed the
complaint of the petitioner by a cryptic order which cannot be
sustained.
7. In view of the above, this application is allowed
and the order dated 01.06.2018 passed by the SDJM, Dehri in
Complaint Case No. 152 of 2018 is hereby quashed.
8. The matter is remitted back to the SDJM, Dehri,
Rohtas, who will proceed in the case and decide the cognizance
issue within two months of communication of this order.
9. Let a copy of this order be communicated to the
Principal District and Sessions Judge, Rohtas through FAX for
its compliance.
(Sandeep Kumar, J)
Vikas/-
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