SURENDRA V GAMI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Rule. Shri M.R.Mengde, learned APP waives service of rule on behalf of the respondent No.1 State and Shri Pranav G. Desai, learned advocate waives service of rule on behalf of the respondent No.2 original complainant.

(2.) By way of this petition under Articles 226 and 227 of the Constitution of India r.w. Section 482 of the Criminal Procedure Code, the petitioner original accused No.3 has prayed for an appropriate order quashing and setting aside criminal complaint No.889/2005 so far as the petitioner is concerned pending in the Court of learned Chief Judicial Magistrate, Surendranagar.

(3.) A criminal complaint No.889/2005 is filed by the respondent No.2 herein against the petitioner original accused No.3 and others in the Court of learned Chief Judicial Magistrate, Surendranagar for the offence under section 138 of the Negotiable Instrument Act, 1881 (hereinafter referred to as "the N.I.Act" for short) alleging inter alia that the original accused No.1 is the Limited Company and accused Nos. 2 and 3 respectively are the Managing Directors & Directors of the said company. It is further averred in the complaint that the accused No.1 company and the accused Nos.2 and 3 have taken a loan from the complainant bank and a huge amount was due and payable by them to the bank and as the same was not paid, the bank had filed Recovery Application No.46/2000 before the Debts Recovery Tribunal, Ahmedabad and the said recovery application was placed before the Lok- Adalat on 19.3.2005 and there was a settlement and accused No.2 remains present before the Lok-Adalat and it was agreed to pay Rs.35 Lacs in all towards full and final settlement of the account and the dues of the complainant bank and accordingly on payment of Rs.35 Lacs, it was decided to issue No Due Certificate. It is further averred and alleged in the complaint that accordingly original accused No.2 gave 3 cheques in all of Rs.10 Lacs dated 31.3.2005 of the original accused No.1 company and it is alleged that the original accused Nos.2 and 3 have given assurance that as and when the said cheques are deposited, the same will be honoured. It is submitted that all the aforesaid 3 cheques were deposited on 20.4.2005, however, all the cheques came to be dishonoured and returned with an endorsement "Fund Insufficient". It is further averred in the complaint that thereafter again at the request of the original accused, the said cheques were redeposited and again the said cheques came to be returned with an endorsement "Insufficient Fund" and therefore, the complainant has served statutory notice upon the accused persons. It is further averred that the accused persons have given evasive reply and have not made the payment towards the aforesaid cheques in question and therefore, they have committed offence under section 138 of the N.I.Act and therefore, the aforesaid complaint has been filed. In the said complaint, the learned Chief Judicial Magistrate, Surendranagar issued summons upon the petitioner and other accused for the offence under section 138 of the N.I.Act and therefore, the petitioner has preferred present application for quashing and setting aside the aforesaid complaint.