MADHUSUDAN LAXIDAS BUVA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Present application under Sec. 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "CrPC") has been preferred by the applicants herein - original accused Nos.3 and 2 to quash and set aside the complaint being Criminal Case No.128/2005 pending in the Court of learned Metropolitan Magistrate, Ahmedabad for the offence under Sec. 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "NI Act").

(2.) Respondent No.2 herein - original complainant has lodged the impugned complaint against the applicants herein and another for the offence under Sec. 138 of the Neotiable Instruments Act in the Court of learned Metropolitan Magistrate, Ahmedabad being Criminal Case No.128/2005 for dishonor to cheque No.0094113 dated 31.05.2005 drawn from the bank account of accused No.1. In the said complaint, the learned Metropolitan Magistrate has directed to issue summons against the applicants herein - original accused Nos. 3 and 2 and against original accused No.1 (signatory to the cheque and from whose bank account the cheque was drawn), for the offence under Sec. 138 of the Neotiable Instruments Act. Hence, the applicants herein - original accused Nos.3 and 2 have preferred the present application under Sec. 482 of the Crimial P.C. to quash and set aside the impugned complaint.

(3.) Shri P.P. Majmudar, learned advocate appearing on behalf of the applicants herein - original accused Nos.3 and 2 has vehemently submitted that as applicants are neither signatory to the cheque nor the cheque in question is drawn from the bank account maintained by them, it cannot be said that applicants have committed any offence under Sec. 138 of the Neotiable Instruments Act. It is submitted that admittedly the cheque in question has been issued by the original accused No.1 and drawn from his bank account. Therefore, it is submitted that ingredients of Sec. 138 of Neotiable Instruments Act have not been made out so far as the applicants herein - original accused Nos.3 and 2 are concerned. Shri Majmudar, learned advocate appearing on behalf of the applicants herein - original accused Nos. 3 and 2 has heavily relied upon the decision of this Court in the case of Mahendrakumar Tulsibhai Patel Vs. State of Gujarat and Anr. reported in 2008(1) GLH 196 in support of his prayer to allow the present Criminal Miscellaneous Application and to quash and set aside the impugned complaint so far as the applicants herein are concerned.