JUDGMENT : ANIL KUMAR CHOUDHARY, J. 1. Heard the parties. 2. This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 528 of B.N.S.S., 2023 with the prayer to quash the FIR including all subsequent proceeding arising out of Jorapokhar P.S. Case No.133 of 2024 registered for the offence punishable under Section 406 and 420 of Indian Penal Code as well as Section 138 of N.I. Act. 3. It is submitted by the learned counsel for the petitioner by drawing attention of this Court to Section 142 (1) (a) of Negotiable Instruments Act, 1881 that the same bars any court from taking cognizance punishable under Section 138 of N.I. Act except upon a complaint in writing made by the payee, or as the case may be, the holder in due course of the cheque. It is next submitted by the learned counsel for the petitioner that the offence punishable under Section 406 and 420 of Indian Penal Code is not made out against the petitioner, even if the allegations are considered to be true. It is then submitted by the learned counsel for the petitioner that though the complainant filed complaint involving the offence punishable under Section 138 of N.I. Act, the learned Judicial Magistrate 1st Class, Dhanbad has committed a gross illegality by referring the complaint to police for registration of the FIR. Hence, the consequential registration of the FIR being Jorapokhar P.S. Case No. 133 of 2024 be quashed and set aside. 4. Learned Additional Public Prosecutor fairly submits that the cognizance of the offence punishable under Section 138 of N.I. Act can only be taken by the court concerned upon a complaint in writing made by the payee, or as the case may be the holder in due course of the cheque but it is submitted by learned Addl. P.P. that admittedly the time period stipulated for filing the complaint in respect of the offence punishable under Section 138 of N.I. Act has already elapsed but of course, under the proviso of Section 142 (1) of N.I. Act, the court concerned after giving notice to the petitioner- accused person, may take cognizance of the offence, if the complainant satisfies the court that he has sufficient cause for not making the complaint within the stipulated time. 5. 5. Having heard the submissions made at the Bar and after going through the materials in the record, it is pertinent to mention here that the complaint involves the offence punishable under Section 138 of N.I. Act, the cognizance of which can only be taken by the learned Magistrate upon the complaint being presented to it and not on the basis of a police report. It is also pertinent to mention here that in the case of Ramdev Food Products Private Ltd. vs. State of Gujarat , (2015) 6 SCC 439 , a three Judge Bench of the Hon’ble Supreme Court of India has held as under:- “22.1. The direction under Section 156(3) is to be issued, only after application of mind by the Magistrate. When the Magistrate does not take cognizance and does not find it necessary to postpone the issuance of process and finds a case made out to proceed forthwith, direction under the said provision is issued. In other words, where on account of credibility of information available, or weighing the interest of justice it is considered appropriate to straightaway direct investigation, such a direction is issued. 22.2. The cases where Magistrate takes cognizance and postpones issuance of process are cases where the Magistrate has yet to determine “existence of sufficient ground to proceed”. Category of cases falling under para 120.6 in [Lalita Kumari v. State of U.P., (2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] may fall under Section 202.” 6. Now coming to the facts of the case, as already indicated above, the complaint involves the offence punishable under Section 138 of N.I. Act, the cognizance of which offence cannot be taken by the Magistrate upon the Final Report submitted by the police after investigation of the case. 7. Now the Magistrate has without assigning any reason has referred the complaint upon Section 156(3) Cr.P.C. to police, without mentioning as to why it is referring the complainant to police, even though one of the offences involved is punishable under section 138 of the Negotiable Instruments Act, the cognizance of which cannot be taken up on a police report. 7. Now the Magistrate has without assigning any reason has referred the complaint upon Section 156(3) Cr.P.C. to police, without mentioning as to why it is referring the complainant to police, even though one of the offences involved is punishable under section 138 of the Negotiable Instruments Act, the cognizance of which cannot be taken up on a police report. Under such circumstances, this Court is of the considered view that the act of the learned Magistrate in referring the complaint under Section 156 (3) Cr.P.C. to police basing upon which Jorapokhar P.S. Case No. 133 of 2024 has been registered is not sustainable in law. Accordingly, the same is quashed and set aside. 8. The Complaint Case No. 12225 of 2023 is remitted back to the court of learned Chief Judicial Magistrate, Dhanbad or the concerned Judicial Magistrate to whom such case has been transferred, to pass fresh order in accordance with law. 9. In the result, this criminal miscellaneous petition is allowed.