GAURIBEN BHIMJIBHAI SORATHIYA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Since the issues involved in the present applications are identical in nature, Criminal Misc. Application No.7834 of 2018 is considered as leading matter.

(2.) The present application is filed for seeking following main reliefs:-

(3.) Brief fact in Criminal Misc. Application No.7834 of 2018 as per the case of the applicant in this application are as such that the applicant is a lady aged 58 years and doing household work. The case of the respondent no.2- complainant is that the complainant is a proprietor of Sahjanand Accounting. It is alleged that the Accused Kadam Valjibhai Baldaniya is the owner of Kadam Construction and he is engaged in the business of construction of residential premises/houses. It is alleged in the complaint that the applicant herein is having House No.173, 3-B which was mortgaged and the gold ornaments of applicant herein were also mortgaged. It is alleged that as the applicant as well as accused no.1 were in need of money, they approached the complainant. It is alleged that the applicant and accused no.1 had taken loan of Rs.90.00 Lakhs for business purpose/ personal reasons. It is alleged that the complainant had given this amount of Rs.90.00 Lakhs in cash. It is alleged that upon repeated requests and reminders for repayment, finally, the accused no.1 issued two cheques bearing no. 030032 and 030033 both dtd. 15/6/2017 drawn on Central Bank of India, Gandhidham Branch, Kutch for a sum Rs.22,50,000.00 each, totaling to Rs.45,00,000.00. It is alleged that upon presentation of the cheques, the same came to be dishonoured with endorsement "ALTERATION REQUIRE DRAWER AUTHENTICATION" on 5/7/2017. It is alleged that the complainant thereafter issued statutory notice u/s. 138 of N.I. Act to the accused no.1 on 10/7/2017 and thereafter filed the impugned complaint. It is the case of the applicant in this applicant that even taking the case of the complainant as it is without admitting the same, it is clear that the applicant has not issued any cheque to the complainant. The applicant has not signed any cheque or given the same to the complainant towards any legally enforceable debt. The applicant is nowhere concerned with the partnership firm/construction company of accused no.1. In fact, the applicant has not taken/ borrowed any amount from the complainant. The entire story qua the applicant is false and fabricated. In pursuance to the filing of the complaint, the Ld. 3rd Additional Senior Civil Judge & Additional Chief Judicial Magistrate, Surat has issued summons in the complaint. It is pertinent to note that though the applicant is not issued any notice u/s. 138 of N.I. Act . In spite of the same, the complainant has joined the applicant as accused in the criminal complaint filed u/s. 138 of N.I. Act . Without appreciating the above material aspect, the Ld. Magistrate has issued summons to the applicant also. The impugned order of summons and the complaint is thus clear abuse of process of law and court. The Ld. Magistrate has passed the impugned order without application of mind. Hence, this application is preferred.