RAJIV JAYANTIBHAI JHAVERI Vs. LALURAM KELAJI AHIR

JUDGEMENT

(1.) By way of this application under Section 482 of the Code of Criminal Procedure, the petitioner, original-accused, has prayed for an appropriate order quashing the private complaint being Criminal Complaint No. 15681 of 2006 pending before the Court of learned Judicial Magistrate [FC], Surat.

(2.) The Criminal Complaint No. 15681 of 2006 is filed by the respondent No.1 herein, original-complainant in the Court of Chief Judicial Magistrate [FC], Surat against the petitioner, original-accused for the offence punishable under Section 138 of The Negotiable Instruments Act, 1938 [hereinafter referred to as 'the Act] alleging inter alia that a sum of Rs. 4,70,000 was given on loan to the petitioner, original-accused and the said amount was not returned by the petitioner. However the complainant issued one cheque bearing No. 322198 for Rs. 25000 dated 16.2.2006 in the name of Jai Bhavani Saree Centre and the said cheque was deposited by the complainant in the Bank on 22.2.2006 however the said cheque came to be returned by the Bank with an endorsement Spayment stopped by drawer . It was alleged in the complaint that the complainant was informed about the return of the said cheque on 27.2.2006 and thereafter he had served Registered AD notice upon the petitioner, original-accused on 7.3.2006 which was replied to by the accused however the amount under the said cheque was not paid by the petitioner and therefore the aforesaid criminal complaint came to be filed against the petitioner for the offences under Sections 138 , 139 and 142 of the Act. That the learned JMFC by his order dated 13th April 2006 issued summons upon the petitioner for the offences punishable under Section 138 of the Act and therefore the petitioner has preferred the present application to quash the aforesaid complaint.

(3.) Shri RR Marshall, learned advocate appearing on behalf of the petitioner, original-accused, has submitted that in fact the petitioner has not committed any offence as alleged under Section 138 of the Act as the said cheques were stolen for which a complaint was filed as well as an advertisement by way of public notice in the local newspaper, 'Gujarat Samachar' was given on 23.2.2006; simultaneously the petitioner also informed the Bank with regard to stoppage of payment; and therefore the learned trial Court ought not to have issued summons against the petitioner for offences under Section 138 of The Negotiable Instruments Act. It is submitted that instructions were given to the Bank for Sstop payment and even advertisement was also given in newspaper with regard to the said cheques being stolen and therefore it is requested to allow the present application as continuance of criminal prosecution against the petitioner for the offences under Section 138 of The Negotiable Instruments Act would be abuse of process of law.