AKHOURI GOPAL Vs. STATE OF BIHAR

JUDGEMENT

(1.) Heard learned counsel for the petitioner, for the State and for the opposite party no. 2. The petitioner who is stated to be a dealer in Automobiles is aggrieved by the order of cognizance dated 26.2.2009 under Sections 406 and 420 of the I.P.C. and Section 128 of the Negotiable Instrument Act in Complaint Case No. 279 of 2009 preferred by the opposite party no. 2 pending before the Judicial Magistrate, Bhagalpur.

(2.) The allegations are that the opposite party no. 2, purchased a truck from the petitioner. It was short of one tyre and rim for which the petitioner gave him a due payment of Rs. 13,500/- along with interest of Rs. 1800/- totaling Rs. 14,300/- by an account payee cheque duly encashed. The petitioner had allegedly issued another cehque of Rs. 15,000/- by way of cash discount as per business norms on the purchase. The cheque was deposited in the bank on 15.4.2008 and every time the opposite party no. 2 enquired into the amount being credited, each time the information was in the negative from the staff of the Bank. Ultimately, a legal notice was sent to the Bank which informed the insufficiency of the funds in the account for honouring the check. A legal notice was then sent to the petitioner on 3.10.2008. Instead of paying the amount the petitioner demanded return of the cheque as issued inadvertently.

(3.) Learned counsel for the petitioner submits that there is no pleading in the complaint with regard to the fulfillment of the statutory conditions under Section 138 of the N.I. Act by stating that on what date the bank intimated insufficiency of funds so as to bring the notice dated 3.12.2008 within the ambit of Section 138(b) of the N.I. Act which mandates a notice within 30 days of the dishonour. There is no pleading on what date this notice if given was received to invoke Section 138 (c) of the N.I. Act of the liability of the petitioner to repay within 15 days. He relies upon a judgment reported in 2003 Criminal Law Journal 520 holding to the following effect at Paragraph 5 of the judgment which reads as follows:-