HASHMIKANT M SHETH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) In this petition filed under Section 482 of the Code of Criminal Procedure ('the Code' for short) the petitioner against whom Criminal Complaint bearing No.558 of 2003 is filed in the Court of learned Judicial Magistrate, First Class, Ahmedabad (Rural) for commission of alleged offence under Section 138 of Negotiable Instruments Act ('the Act' for short) in which process has been issued, has prayed to quash and set aside the complaint and process issued thereunder, on the grounds stated in the petition.

(2.) The petitioner is the original accused whereas respondent No.2 is the original complainant in the above referred criminal complaint. Therefore, for the sake of convenience and brevity, the petitioner is referred to as "the accused" whereas respondent No.2 is referred to as "the complainant" hereinafter in this judgment.

(3.) As per the averments made in the petition, the accused came in contact with the complainant and therefore as and when the accused was in need of money he used to borrow money from the complainant. The transaction started between both of them since 1992-93 and the last transaction between them took place in the year 1998. In that connection the accused was asked to issue blank cheques for the purpose of surety and security. The accused was having his account Nos. 201534 and 3546583 with Bank of Baroda. The accused accordingly issued blank cheques in favour of the complainant as per the demands made by him. It was agreed between them that the complainant shall not deposit the said cheques without prior intimation to the accused. It is pleaded by the accused that according to the complainant the accused was required to pay Rs.2,70,000/- towards the outstanding dues including interest. Therefore, in that connection, the accused had approached the complainant to settle his account on 15.8.2002 and had accepted his liability, though according to the accused all these facts are concocted and the same are alleged only with a view to create false evidence. According to the accused, the complainant used the said blank cheques issued by the accused in the year 1998 in respect of the last alleged transaction and entered the dates of all the cheques for the period between 1.9.2002 to 10.11.2002. The accused was not intimated regarding the dates, amount entered in the cheques by the complainant. To the great shock and surprise of the accused, the complainant deposited all the ten cheques with his banker Ahmedabad District Cooperative Bank Limited, Aslali Branch on 24.12.2002, the total amount of which comes to Rs.2,40,000/-. The said cheques were dishonoured on the ground of "exceed arrangement and account closed". 3.(i) On return of the said cheques, the complainant issued notice to the accused under section 138 of the Act on 31.12.2002. According to the accused, in the said notice, the complainant has stated incorrect and fabricated facts with a view to use the same as a piece of evidence against him before the appropriate court of law. 3.(ii) The accused replied to the said notice vide his reply dated 10.1.2003 wherein the accused has categorically denied all the allegations made by the complainant in his notice dated 31.12.2002. 3.(iii) Notwithstanding the reply given by the accused, the complainant has filed the impugned complaint in the court of learned Judicial Magistrate, First Class, Ahmedabad (Rural) for commission of the alleged offence punishable under section 138 of the Act and the learned Magistrate has issued summons against the accused. 3.(iv) According to the accused, the complainant has also filed two other Criminal Complaints for commission of the alleged offence under section 138 of the Act in respect of other cheques. According to the accused the impugned complaint is filed with a malafide and bad intention to harass him and to extort money from him. The impugned complaint therefore is nothing but a sheer abuse of process of law. Therefore the petitioner has approached this Court by filing present petition under section 482 of the Code claiming the reliefs to which reference is made in earlier paragraphs of this judgment.