SRIPRAKASH GANPATRAI KEJRIWAL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) PRESENT application has been field by the applicant ? original accused under sec. 482 of the Code of Criminal Procedure to quash and set aside the complaint filed by the respondent No. 2 - original accused herein, being Criminal Case No. 1033 of 2002, pending in the court of learned Judicial Magistrate (First Class), Surat for the offence under sec. 138 of the Negotiable Instruments Act, 1881 (Act No. 26 of 1881) (hereinafter shall be referred to as ?the N. I. Act? for short ).

(2.) A complaint came to be filed by the respondent No. 2 ? original complainant in the court of learned Judicial Magistrate (First Class), Surat against the applicant ? original accused for the offence under sec. 138 of the N. I. Act, alleging inter-alia that three cheques bearing Nos. 312569, 312568 and 312570, dtd. 29/6/2002 were issued by the applicant in favour of the complainant which came to be deposited on 4/7/2002. However, the same came to be dishonoured with an endorsement of ?insufficient fund?. It was further alleged in the complaint that thereafter statutory notice as contemplated under sec. 138 of the N. I. Act came to be issued upon the applicant - accused on 9/7/2002 and inspite of the service of the said notice, the amount under the cheques were not paid and therefore, it is alleged that the applicant - accused has committed an offence under sec. 138 of N. I. Act. The said complaint came to be filed on 7/8/2002 which came to be registered as Criminal Case No. 1033 of 2002 and thereafter, learned Judicial Magistrate (First Class), Surat passed order on 7/8/2002 issuing process / summons upon the applicant for the offence under sec. 138 of N. I. Act and hence the applicant has preferred present application for quashing and setting aside the aforesaid complaint filed under sec. 482 of the Code of Criminal Procedure.

(3.) THE learned advocate appearing on behalf of the applicant has made only one submission that the cheques in question were returned by the bank on 4/7/2002 and thereafter all the cheques were again presented by the applicant in the bank on 5/8/2002 and therefore, the complainant has waived his right to lodge complaint on the basis of notice dtd. 9/7/2002 and as the complainant has waived his right by representing the cheques again after issuance of the notice, the impugned complaint is not maintainable and therefore, it is requested to quash and set aside the impugned complaint.