BALIHARI COLD STORAGE Vs. STATE OF GUJARAT

JUDGEMENT

(1.) RULE . Learned A.P.P. Mr.U.R.Bhatt waives service of rule on behalf of the respondent no.1 while Mr.P.S.Champaneri waives service of rule on behalf of the respondent no.2.

(2.) THIS application under Section 482 of the Code of Criminal Procedure, 1973 is preferred by the petitioners nos.1 to 6 with a prayer to quash and set aside the order dated 26 -10 -2005 passed by the Judicial Magistrate, First Class, Veraval, in Criminal Case no.1100 of 2005 below Exh.1 produced at Annexure "A" to the petition or in the alternative to quash and set aside the impugned judgment and order dated 19 -10 -2006 passed in Criminal Revision Application no.9 of 2006 produced at Annexure "D" to the petition and the judgment and order passed by the learned Judicial Magistrate, First Class, Veraval, below Exh.6 against the petitioners in Criminal Case no.1100 of 2005 and by virtue of it allow the application Exh.6 preferred in Crimial Case no.1100 of 2005. The respondent no.2 herein -original complainant lodged the complaint in Criminal Case no.1100 of 2005 against the present petitioners -original accused for the alleged offences punishable under Section 138 of the Negotiable Instruments Act and the learned Magistrate after verification issued summons. The present petitioners submitted an application Exh.6 dated 6 -12 -2005 for dropping the proceedings contending that their bank account was closed on 17 -4 -2007 and stop payment instruction was also issued to the bank through letter dated 17 -7 -1998. It was the case of the petitioners that one Chhagan Kanji Aagya wanted loan from the present petitioners -original accused, and therefore, on instructions from the accused no.6 , the accused no.2 issued two cheques bearing no. 5841202 for Rs.7,00,000/ - and no.5841203 for Rs.6,00,000/ -in the year 1998 to Chhagan Kanji Aagya in which only the amount was mentioned and no date or name was mentioned. It was further the case of the petitioners that later on, the accused themselves were in need of money, and since Chhagan Kanji Aagya had not utilised the said cheques, the petitioners vide registered A.D. Letter dated 16 -7 -1998 requested the said Chhagan Kanji Aagya to return those cheques but Chhagan Kanji had not acceded to their request, as a result of which the relations between the petitioners and the said Chhagan Kanji Aggya became strained. The petitioners, therefore, issued stop payment instructions to the bank by letter dated 17 -7 -1998 in respect of the aforesaid two cheques issued to Chhagan Kanji Aggya as and when presented. In the said letter it was specifically stated that the said two cheques were issued to Chhagan Kanji Aagya and that the cheque bearing no.58441203 for Rs.6,00,000/ - has been misused by the respondent no.2 -herein -original complainant in the year 2005 against the petitioners -original accused. According to the petitioners, under these circumstances they have preferred application Exh.6 for dropping the proceedings which came to be partly allowed by the learned Judicial Magistrate, First Class, Veraval, by order dated 10 -3 -2006 by dropping the proceedings against the accused nos.3 and 5, and rejecting the application qua the accused nos.1, 2 and 6. The learned Magistrate also directed that the matter shall proceed further. Against the said order, the present petitioners preferred Criminal Revision Application no.9 of 2006 and the 3rd Additionals Sessions Judge, Veraval, before whom the matter came up, after hearing both the sides by his order dated 19 -10 -2006 allowed the Revision Application and while setting aside the order passed by the learned Chief Judicial Magistrate, First Class below Exh.6 in Criminal Case no.1100/2005 directed the lower Court to proceed against all the accused and to decide the case on merits, giving rise to the present Criminal Miscellaneous Application.

(3.) HEARD learned Counsel Mr.R.C.Kakkad for the petitioners, learned A.P.P. Mr. Bhatt for the respondent no.1 -State and Mr. P.S.Champaneri for the respondent no.2. Learned Counsel for the petitioners Mr. Kakkad has strenuously argued that from the documents it is crystal clear that the present petitioners had not issued cheque in favour of the respondent no.2 -original complainant but the cheque was issued in favour of Chhagan Kanji Aagya. According to the learned Counsel, the respondent no.2 had illegally obtained the same from the said Chhagan and he had also misued one of the cheques, and therefore, the petitioners had also issued instructions of stop payment to the bank. The learned Counsel further stated that bank account of the petitioner no.1 -firm was closed on 17 -4 -2004 while the cheque in question which was issued in the year 1998 was presented for encashment in the year 2005 and in view of the fact that the respondent no.2 had already misused one of the cheques, in order to prevent abuse of the process of law, the petition is required to be allowed.