DIPENDRA G CHOKSI Vs. DIPAK CHIMANLAL PATEL

JUDGEMENT

(1.) Whether in cases wherein the allegations made in the complaint filed by a drawee of the cheque against the drawer under Sec. 138 of the Negotiable Instruments Act, 1881, also further discloses the material ingredients which prima facie do constitute an offence punishable under Sec. 420 of Indian Penal Code, should the Court to which such a complaint is presented for taking the cognizance of offence, confine itself merely to issue process under Sec. 138 of the Act (?) or secondly whether under such circumstances it is equally the duty of the Court also to see that alongwith the process to be issued for the alleged offence under Sec. 138 of the Act it also issues process under Sec. 420 of the Code against the accused -

(2.) The respondent No. 1 Dipak Chimanlal Patel -Jigar Engineering Industries, G.I.D.C. Vatva, Ahmedabad, filed a complaint before the learned Metropolitan Magistrate Court No. 7, Ahmedabad, against the petitioners -Dipendra G. Choksi and Ashaben G. Choksi -partners, Director and Managing Director respectively of Sunchem Enterprise, situated at Plot No. 41, G.I.D.C., Vatva, Ahmedabad, for the alleged offence punishable under Sec. 138 of the Negotiable Instruments Act, 1881 (for short "The Act"). According to the complainant, he is doing the business of manufacturing and selling ice. The petitioner Nos. 1 and 2 (original accused Nos. 1 and 2) purchased ice from him on several occasions. Accordingly, it is the case of the complainant that the petitioners first purchased ice from him in between the period from 1 -2 -1989 to 28 -2 -1989 to the tune of Rs. 43,768 -28 Ps. ; thereafter from 1 -3 -1989 to 31 -1 -1989 to the tune of Rs. 20,849 -00 Ps. ; and from 1 -4 -1989 to 30 -4 -1989 to the tune of Rs. 2,810 -80 Ps. on credit. In three transactions, in all the accused purchased the goods worth Rs. 67,428 -08 Ps. Towards these three transactions, according to the complainant, the petitioners gave him three different cheques of different dates, which he had deposited in the bank within the period of six months from the date on which it was drawn, however, the same were returned by the concerned bank with the endorsement "refer to drawer". Under the circumstances, when the complainant contacted the petitioners, they assured that the outstanding bill amounts would be paid up in few days with a request to present the cheque once again in the bank. This was done, however, once again all the aforesaid three cheques bounced back with an endorsement "refer to drawer" as there was no balance in the account of the petitioners. It is further alleged that despite the repeated demands, since the outstanding amounts towards bills were not paid, the complainant gave a Regd. Notice on 20 -6 -1989 to the, petitioners requesting them to remit the outstanding bill amount with interest, giving further warning that if any default was committed in payment of the money, the complainant would be constrained to file a criminal complaint. Despite service of the said notice, since the outstanding bill amounts were not paid by the petitioners, the respondent No. 1 filed a complaint in the Court of the learned Metropolitan Magistrate Court No. 7, Ahmedabad on 24 -7 -1989 against them, on the basis of which, the Court issued the process for the alleged offence under Sec. 138 of the Act, giving rise to the present petition under Sec. 482 of the Code of Criminal Procedure, 1973 inter alia praying for quashing the same.

(3.) This matter was called out yesterday twice, but Mr. A. S. Kothari, learned Advocate for the petitioner and Mr. S. V. Raju, the learned Advocate for the respondent No. 1 were absent, the matter was adjourned to today. Today also when the matter was called out, both the learned Advocates were absent. It is under these circumstances that with the assistance of Mr. D. N. Patel, the learned A.P.P., this Court has heard and disposed of the same.