PATEL BACHUBHAI RAMJIBHAI Vs. PARSOTTAMBHAI P RAMI

JUDGEMENT

(1.) By means of filing this Application under Section 482 of the Code of Criminal Procedure, 1974 {"CrPC" for short}, the applicant -original accused seeks quashment of criminal complaint, being Criminal Case No. 1859 of 2010 filed by the respondent no. 2 herein against the applicant in the Court of learned JMFC, Viramgam, District Ahmedabad under Section 138 of the Negotiable Instruments Act, 1881 ["NI Act" for short].

(2.) Heard learned advocate Mr. MIG Mansuri for the petitioner and learned APP Ms. Moxa Thakker for the respondent No. 3 -State as well as learned advocate Mr. Dhaval M. Barot for the respondent no. 1 & 2. Learned advocate Mr. MIG Mansuri appearing for the petitioner urged that two different notices were issued by the respondent no. 2. That the first cheque in question was deposited on 25th February 2010 by the respondent no. 2 with the Bank which was dishonoured and returned unpaid with a memo issued by the Bank on 3rd March 2010 because of insufficient funds. Thereafter, complainant issued first notice dated 5th March 2010 to the petitioner, which was received on 31st March 2010. When the accused failed to pay amount outstanding within fifteen days of the receipt of the notice, therefore, in view of provisions of Section 138 of the Negotiable Instruments Act, the cause of action has arisen on expiry of the said fifteen days, but, the complainant did not chose to file complaint within stipulated period of cause of action of the first notice, in view of provisions of Section 142 [B] of the NI Act. He further urged that the complainant -respondent no. 2 issued again second notice dated 4th September 2010 with a story of re -deposit of the said cheque, which was received by the petitioner on 9th September 2010.

(3.) According to the learned advocate, the second notice after re -presentation of the cheque cannot revive the cause of action, which was already due to afflux of time, and therefore, the impugned complaint based upon the second notice is required to be quashed and set -aside. In support of his contention, learned advocate Mr. Mansuri has relied upon decision of this Court in case of Pruthvish B. Dave v. State of Gujarat & Anr., reported in 2000 [1] GCD 114 and by the Apex Court in case of Sadanandan Bhadran v. Madhavan Sunil Kumar, reported in 1998 [6] SCC 514. Thereafter, it is further urged that first verification was given by the respondent no. 2 before the learned Magistrate with respect to the impugned notice. In the verification, the complainant and the respondent no. 2 stated that he deposited the said cheque in his account maintained with Mandal Nagarik Sahakari Bank on 25th February 2010 and it was dishonoured and returned with an endorsement "Insufficient Funds" by the Banker by a memo dated 3rd March 2010 and for that, the complainant issued a notice dated 4th September 2010 which was received by the accused and even then the accused did not pay the said amount within stipulated time and thereby committed an offence under Section 138 of the NI Act. That the complainant has completely maintained silence in the said verification about issuance of first notice dated 25th March 2010 and its receipt by the 31st petitioner on March 2010. That, the learned Magistrate did not apply his mind properly to the facts of the case in light of provisions of Section 138 read with Section 142 of the NI Act and mechanically took cognizance of the offence on 30th October 2010 and ordered to admit the said complaint and to issue summons against the accused. Learned advocate has further submitted that on the given date, there was no legally enforceable debt or liability of the petitioner. That, the respondent no. 2 illegally possessed the blank cheque of the petitioner signed by him for it to present to the Banker of the respondent no. 2 for encashment of the amount. He committed breach of trust and have cheated the petitioner and tried to falsely implicate him by misusing the legal machinery and has abused the process of law. On this issue, learned advocate has placed reliance upon decision of this Court rendered in Criminal Misc. Application [For Quashing & Setting Aside FIR/Order] No. 968 of 2014 with Criminal Misc. Application No. 1067 of 2014 and allied cases dated 15th June 2016 and requested this Court to allow this petition by quashing and setting aside the impugned complaint, being Criminal Case No. 1859 of 2010 pending in the Court of learned JMFC, Viramgam, District -Ahmedabad.