Mukesh Kumar Nishad vs. The State Of Bihar
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The petitioner, Mukesh Kumar Nishad, sought pre-arrest bail in a complaint case involving offenses under Section 406 of the Indian Penal Code and Section 138 of the Negotiable Instruments Act. The complainant, Himanshu Kumar Mishra, proprietor of Rishabh Tractors, alleged that the petitioner purchased tractor spare parts worth Rs. 1,97,000/- on April 21, 2021, and issued a cheque dated August 5, 2021, for that amount. The cheque was dishonored due to insufficient funds. Despite a legal notice and failed mediation, the petitioner allegedly refused to make payment. The petitioner contended that GST invoices were issued for the sales, which were accounted for in the complainant's GST returns.
Held
The Court denied the petitioner's application for pre-arrest bail. The Court observed that the petitioner failed to respond to the legal notice and refused to make payment even after mediation failed. This conduct, coupled with the dishonor of the cheque, led the Court to draw an adverse inference against the petitioner, reinforcing the prima facie genuineness of the complainant's case. The Court cited Supreme Court judgments in Sanjabij Tari v. Kishore S. Borcar and Tedhi Singh v. Narayan Dass Mahant to support the inference drawn from the failure to reply to the statutory notice and the accused's burden to set up a defense. The Court concluded that the petitioner, with a pre-determined mind, induced the complainant to deliver spare parts and issued the cheque with the intention not to make payment. Therefore, the Court was not inclined to enlarge the petitioner on pre-arrest bail and directed the petitioner to surrender before the learned District Court to seek regular bail.
Key Issues
1. Whether the petitioner is entitled to pre-arrest bail in a case involving alleged offenses under Sections 406 IPC and 138 NI Act, considering the dishonor of a cheque and subsequent failure to make payment despite legal notice and mediation. Petitioner's arguments: The petitioner sought pre-arrest bail. The judgment does not explicitly record arguments made by the petitioner for seeking bail, beyond the general prayer. Revenue/State's arguments: The State, through the learned APP, opposed the prayer for bail. The complainant's counsel argued that the complainant is an authorized dealer, spare parts worth Rs. 1,97,000/- were delivered in good faith, and the petitioner issued a cheque with a pre-determined intention not to make payment. They stated that GST invoices were issued and sales were accounted for in the complainant's GST returns.
Sections Cited
Section 406, Section 138
AI-generated summary — verify with the full judgment below
Cause title — parties, addresses and appearances
ORAL ORDER 5 03-08-2026 Heard learned counsel appearing on behalf of the petitioner, learned APP for the State and learned counsel for the O.P. No.2. 2. The petitioner seeks pre-arrest bail in connection with Complaint Case No. C-1513/2021 registered for the offence punishable under Section 406 of the Indian Penal Code and Section 138 of the N.I. Act.
The prosecution case, in brief, is that the complainant, Himanshu Kumar Mishra, runs an agency of Swaraj Tractor and also sells spare parts. It is alleged that on 21.04.2021, the petitioner visited the complainant's shop and purchased certain spare parts. As he was allegedly unable to make payment in cash, he issued Cheque No. 000019 dated 2/5 21.04.2021 for a sum of Rs. 1,97,000/-, drawn on Bandhan Bank, Motihari Branch, in favour of the complainant. It is further alleged that when the complainant deposited the said cheque for encashment on 12.08.2021, the same was dishonoured by the Bank due to insufficient fund. Thereafter, the complainant approached the petitioner and also served a legal notice upon him, but the petitioner neither responded the notice nor made payment to the complainant.
Mr. Radha Mohan Singh, learned counsel who has tendered his appearance on behalf of the O.P. No.2 submitted that the complainant is the authorized dealer of Swaraj Tractor and is running his shop in the name and style of M/s Rishabh Tractors, Swaraj Tractors Agency, Areraj, East Champaran. The complainant had delivered certain spare parts in good faith amounting to Rs.1,97,000/- and in lieu of the same, the petitioner had handed over a cheque equal to said amount bearing Cheque No. 000019 dated 05.08.2021. The petitioner was pre-determined not to make payment of the spare parts which had purchased for which GST invoices were issued in favour of the petitioner and those sells are well accounted, which can be verified from the portal of the company, as well as, GST returns filed by the complainant each and every 3/5 months.
Learned APP appearing on behalf of the State also opposed the prayer for bail to the petitioner.
It is observed that the complainant approached the petitioner and also served a legal notice upon him, but the petitioner neither responded to the notice nor made payment to the complainant. The matter was referred for mediation before the Mediation Centre of this Court. The petitioner remained adamant and refused to make payment and the mediation failed. The petitioner's complete silence and his subsequent conduct clearly justify drawing an adverse inference against him, as recognised by the Hon'ble Supreme Court, in case of Sanjabij Tari v. Kishore S. Borcar, reported in 2025 SCC OnLine SC 2069 thereby reinforcing the prima facie genuineness of the complainant's case which is reproduced hereinafter:
“29. Furthermore, the fact that the accused has failed to reply to the statutory notice under section 138 of the Negotiable Instruments Act, leads to an inference that there is merit in the appellant-complainant's version. This court in Tedhi Singh v. Narayan Dass Mahant [(2022) 6 SCC 735; (2022) 2 SCC (Cri) 726; (2022) 3 SCC (Civ) 442; 2022 SCC OnLine SC 302.] has held that the accused has the initial burden to set up the defence in his reply to the demand notice that the complainant did not have the financial capacity to advance the loan. The relevant portion of the said judgment is reproduced hereinbelow [ See page 740 of (2022) 6 SCC.] :
“10. The proceedings under section 138 of the Negotiable Instruments Act, is not a civil suit. At the time, when the complainant gives his evidence, unless a 4/5 case is set up in the reply notice to the statutory notice sent, that the complainant did not have the wherewithal, it cannot be expected of the complainant to initially lead evidence to show that he had the financial capacity. To that extent, the courts in our view were right in holding on those lines. However, the accused has the right to demonstrate that the complainant in a particular case did not have the capacity and therefore, the case of the accused is acceptable which he can do by producing independent materials, namely, by examining his witnesses and producing documents. It is also open to him to establish the very same aspect by pointing to the materials produced by the complainant himself. He can further, more importantly, achieve this result through the cross-examination of the witnesses of the complainant. Ultimately, it becomes the duty of the courts to consider carefully and appreciate the totality of the evidence and then come to a conclusion whether in the given case, the accused has shown that the case of the complainant is in peril for the reason that the accused has established a probable defence.””
Having regard to the facts and circumstances and the nature of allegation alleged against the petitioner, this Court had given a chance to both the parties to settle the dispute outside the Court vide order dated 03.06.2026, but the mediation failed and now the petitioner is still adamant that he will not return the amount as mentioned in the Cheque No. 000019 dated 05.08.2021. It can be deemed that the petitioner with a pre- determined mind had induced the complainant to deliver the spare parts of the Tractor and had issued the cheque with an intention not to make payment of the alleged amount, I am not inclined to enlarge the petitioner on pre-arrest bail.
The petitioner may surrender before the learned 5/5 District Court and seek regular bail.
The bail application stands disposed of.
mantreshwar/- (Purnendu Singh, J) U T
Reproduced from the public record of the Patna High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.