GHANSHYAM P SONI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) In this petition which is filed under Section 482 of the Code of Criminal Procedure, 1973 ('the code'for short), the petitioners against whom Criminal Complaint No. 3215 of 1999 is registered and process is issued thereon in the Court of Judicial Magistrate First Class, Vadodara, on the basis of the complaint filed by respondent No.2 for commission of the alleged offences under Section 138 of the Negotiable Instrument Act, 1881 ('the Act' for short) have prayed to quash and set aside the said complaint as well as issuance of process issued thereon, on the grounds stated in the petition.

(2.) It is stated in the petition that respondent No.2 who is the original complainant has filed complaint No. 3215 of 1999 in the Court of JMFC, Vadodara under Section 138 of the Act on October 25, 1999 against the present petitioners. It is alleged in the said complaint that on September 5, 1999 petitioners No.l has issued a cheque bearing No. 0001921 drawn on Anyounya Saharaki Mandli Ltd. Vadodara for Rs. l,50,000/(One lakh fifty thousent only) in favour of respondent No.2 towards the agreement. The respondent No.2 has presented the said cheque for encashment in his account in the Union Bank Of India, Vadodara but the same was not encashed and dishonoured. As per the bank invoice it was returned due to "insufficient fund" The said information was received by the respondent No.2 on September 8, 1999. As per the complaint, respondent No.2 issued the statutory notice dated September 18, 1999 and demended the amount mentioned in the said cheque. The petitioners have not replied the said notice and hence committed the offence under Section 138 of the Act. Hence the respondent No.2 filed the complaint against the petitioners. The petitioners have approached learned JMFC by filling discharge application dated January 1, 2001 vide Exhibit-10 which came to be rejected vide order dated May 5, 2001.

(3.) It is contended in the petition that the prima facie case against the petitioners for commission of the alleged offences under Section 138 of the Act as the cheque is not signed by petitioner No. 2, nor petitioner No.2 had issued the said cheque to respondent No.2. It is further contended that petitioner No 2 to sell the property situated on 2nd and 3rd floor of Siddhnath Complex on June 22, 1998, but due to same mutual understanding, an agreement to sale against which cheques were given for relinquishing the rights over the said property acquired by virtue of agreement in which a clause was agreed that if the cheques would return unpaid the agreement to sale and possessory receipt would come in existence and according to the say of the respondent No.2 the cheque was returned due to insufficient fund from the account of petitioner No.l and hence the respondent No.2 filled a Reguler Civil Suit No. 1385 of 1999 for declearation that respondent No.2 has right by virtue of the agreement to sale dated June 22. 1998. It is the say of the petitioners that since respondent No.2 has filed the Civil suit for declaration on the basis of agreement to sale June 22, 1988, and the agreement entered on August 23,1999 does not remain in force and hence the cheques given against the agreement for relinquishing the right remains no more in existence and thus no legal debt by virtue of the agreement dated August 23, 1999 remain in force against the petitioner. Therefore, there is no illegal debt or liability, as alleged in the complaint on the part of the petitioners towards respondent No.2 and the complaint is filed with malice vengeance with some oblique motive and therefore, it is not tenable and, hence it is prayed to quash the said complaint.