ORDER 1. The petitioner has approached this Court under Section 482 of the Code of Criminal Procedure to quash the order dated 5.3.2008 passed in C.A. No.1052 of 2007 by the court of Sri R. Kumar, Judicial Magistrate, First Class, Patna City, Patna, summoning the three accused, named in the complaint petition, including the petitioner, on inquiry under Section 202 of the Code of Criminal Procedure, finding prima facie case under Section 138 of the Negotiable Instruments Act, 1881. 2. In brief, the case is that the opposite party no.2, Kumar Anand Ranjan, filed the C.A. No.1052 of 2007 in the court of the Additional Chief Judicial Magistrate, Patna City, Patna, against the accused including the petitioner alleging therein that he is the dealer of MAA SHITLA ESCORTS and used to do the business of selling the Tractor on cash and also on credit by furnishing security by the purchaser of the Tractor and its tailor etc. The accused, named in the complaint petition, including the petitioner visited to his office at Bari Pahari on 17.9.2007 and purchased a Tractor and Hydrolic Tractor amounting to Rs.4,48,492/-. At that time, the accused persons made payment of Rs.1,25,000/- through bearer cheuqe and for rest amount of Rs.3,00,000/- postdated account payee cheque bearing no.476732 dated 17.10.2007 of the Punjab National Bank was issued by the accused, Deepak Kumar, with assurance to deposit the said amount within a week in his account. On 17.10.2007, the opposite party no.2 was requested by the accused persons to meet at his office at 4 P.M. but the accused persons did not reach. Thereafter, the cheque bearing no.476732 issued by the accused Deepak Kumar was presented on 23.10.2007 in the Bank for clearance and the said cheque remained with the Bank till 26.11.2007 but on 27.11.2007, the said cheque was dishonoured and returned through Memorandum No.1525 of Dhanarua Punjab National Bank, Patna, showing insufficient fund and also incomplete signature of the drawer. It is also alleged by the opposite party no.2 that the accused persons entered into an agreement for purchase of a Tractor on stamp paper on 17.9.2007, which was signed by the accused, Madhukar Anand, Deepak Kumar and one Shyam Kishore Sharma. On 7.12.2007, the opposite party no.2 received a notice of the accused through advocate, Sri Arjun Sharma, acknowledging about the dishonour of the cheque. On 7.12.2007, the opposite party no.2 received a notice of the accused through advocate, Sri Arjun Sharma, acknowledging about the dishonour of the cheque. Thereafter, the opposite party no.2 on 8.12.2007 replied the notice with a request for payment of the amount of the cheque but all in vain. As such, the accused persons, named in the complaint petition, including the petitioner under conspiracy cheated the opposite party no.2 to the tune of Rs.3,00,000/- by issuing the cheque without sufficient money in the account. 3. After filing of the complaint petition by the opposite party no.2, the court of Sri R. Kumar, Judicial Magistrate, First Class, Patna City, Patna, summoned the accused, named in the complaint petition, including the petitioner, on inquiry under Section 202 of the Code of Criminal Procedure, finding prima facie case under Section 138 of the Negotiable Instruments Act, 1881 through the impugned order dated 5.3.2008. 4. Learned counsel appearing on behalf of the petitioner made submission that from the complaint petition, it would appear that the cheque, which is said to be dishonoured, was not issued by the petitioner rather the same was issued by the accused, Deepak Kumar, who happens to be the son of the petitioner. In spite of that the opposite party no.2 has made accused to the petitioner with an ulterior motive. It has further been submitted that it would appear from Annexure-„4? to the reply of the counter affidavit that the agreement deed regarding purchase of the tractor has not been signed by the petitioner rather the same has been signed by the accused, Madhukar Anand, in which he has detailed about issuing the cheque, which is said to be dishonoured. It would also appear from the notice issued on behalf of the opposite party no.2 through advocate that in the notice, whereby the request was made to deposit the rest amount of Rs.3,00,000/- only the name of the other two accused, Madhukar Anand and Deepak Kumar has been mentioned. 5. On the other hand, learned counsel appearing on behalf of the opposite party no.2 made submission that the petitioner is none but the father of the other two accused, who issued cheque, which is said to be dishonoured, and under conspiracy the petitioner and the other two accused, who are his sons, cheated the complainant to the tune of Rs.3,00,000/-. On the other hand, learned counsel appearing on behalf of the opposite party no.2 made submission that the petitioner is none but the father of the other two accused, who issued cheque, which is said to be dishonoured, and under conspiracy the petitioner and the other two accused, who are his sons, cheated the complainant to the tune of Rs.3,00,000/-. As such, there is no illegality in the impugned order summoning the accused including the petitioner for the offence under Section 138 of the Negotiable Instruments Act, 1881. 6. From perusal of the complaint petition of opposite party no.2, it is apparent that the cheque of Rs.3,00,00/-, which is alleged to be dishonoured due to insufficiency of fund and incomplete signature of drawer, the accused, Deepak Kumar. Section 138 of the Negotiable Instruments Act, 1881, relates to the dishonour of cheque for insufficiency, etc, of funds in the account, which is read as under: “138. Section 138 of the Negotiable Instruments Act, 1881, relates to the dishonour of cheque for insufficiency, etc, of funds in the account, which is read as under: “138. Dishonour of cheque for insufficiency, etc, of funds in the account.- Where any cheque drawn by a person on account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid fromthat account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may be extended to [two] year, or with fine which may extend to twice the amount of cheque, or with both: Provided that nothing contained in this section shall apply unless- (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) The drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice.” 7. From perusal of the aforesaid provision of Section 138 of the Negotiable Instruments Act, 1881, It is crystal clear that the aforesaid provision would be applicable to the person who issues the cheque for payment of money to another person and the cheque is returned by the banker unpaid due to insufficiency of money in the account. From perusal of the aforesaid provision of Section 138 of the Negotiable Instruments Act, 1881, It is crystal clear that the aforesaid provision would be applicable to the person who issues the cheque for payment of money to another person and the cheque is returned by the banker unpaid due to insufficiency of money in the account. Admittedly, the petitioner is not the drawer of the cheque of Rs.3,00,000/- which is said to be dishonoured on presenting by the opposite party no.2 for credit. 8. Under the aforesaid facts and circumstances, the impugned order dated 5.3.2008 passed in C.A. No.1052 of 2007 by the court of Sri R. Kumar, Judicial Magistrate, First Class, Patna City, Patna, summoning the petitioner for the offence under Section 138 of the Negotiable Instruments Act, 1881, appears to be an abuse of the process of the court and the same, with respect to the petitioner, is hereby quashed. 9. In the result, the application is allowed.