Ram Naresh Sahani vs State Of Bihar & Anr on 28 August, 2017

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Miscellaneous No.35319 of 2014
Arising Out of PS.Case No. -1937 Year- 2013 Thana -SARAN COMPLAINT CASE District-
SARAN

Ram Naresh Sahani, son of Shri Banshi Sahani, Resident of Village- Barwa Ghat,
P.S. Mashrakh, District- Saran, Presently residing at Champasari More, P.S.
Pradhan Nagar, Siliguri, District- Darjeeling (West Bengal)
…. …. Petitioner
Versus

1. The State of Bihar

2. Pramod Pandey, son of late Balkrishna Pandey, Resident of Village- Baharauli,
P.S. Mashrak, Distt Saran
…. …. Opposite Parties.

Appearance:

For the Petitioner/s : Mr. Ram Chandra Sahni, Advocate.
For the State : Mr. Tarun Prasad Mandal, APP.
For the O.P. No. 2 : Mr. Vijay Bardhan Pandey, Advocate.

CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
ORAL JUDGMENT
Date: 28-08-2017

Heard learned counsel for the petitioner and learned

counsel representing the complainant-opposite party no. 2 as also the

learned A.P.P. for the State.

2. The petitioner, in the present case, is seeking quashing

of the order taking cognizance and issuance of summons dated

24.01.2014 passed in Complaint Case No. 1937/2013 (Tr. No.

4354/2014) by which the learned Judicial Magistrate, Saran has taken

cognizance of the offences under Section 406 IPC read with Section

138 of N.I. Act.

3. Although the petitioner is the signatory of the cheque
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but for purpose of quashing of the order taking cognizance, he would

submit that prior to filing of the complaint case, the demand notice,

which is in the nature of a statutory notice, intimating the signatory of

the cheque about the dishonour, was not served upon the petitioner.

According to the learned counsel, the petitioner resides in the State of

Assam where the notice was not sent rather the notice was sent at the

residential address where the petitioner is presently not residing.

4. On the other hand, learned counsel for the opposite

party no. 2 submits that the plea of non-service of demand notice is

not a bona fide plea. He would further submit that in the light of the

decision of the Hon’ble Apex Court, in such a situation, the petitioner

could have tendered the amount under the cheque at the very first

instance after getting the summons from the court of the learned

Judicial Magistrate 1st Class, Saran but he has not tendered the amount

so far and is contesting the case on its own merit. Thus, according to

the learned counsel for the opposite party no. 2, this plea is not

available to the petitioner.

5. When confronted with the aforesaid submission of the

learned counsel for the opposite party no. 2, the learned counsel for

the petitioner was called upon to take a stand as to whether he would

be able to deposit the amount under the cheque even at this stage, he

is unable to take a stand on this and prays that the matter may be
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allowed to be decided on its own merit.

6. In the facts and circumstances stated here-in-above,

considering the fact that the petitioner is the signatory of the cheque

this Court does not find any ground to interfere with the order taking

cognizance at this stage. The application is, therefore, dismissed.

7. However, the petitioner may raise all such pleas, which

are available to him, in the court below at the time of framing of

charge.

(Rajeev Ranjan Prasad, J)
Dilip, AR

AFR/NAFR NAFR
CAV DATE N/A
Uploading Date 28.08.2017
Transmission N/A
Date

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