JOITARAM K PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioner, by way of filing this application under Section 482 of the Code of Criminal Procedure (Code for short) has prayed to quash the complaint filed by respondent No.2 against the petitioner, and the criminal proceedings, being Criminal Case No. 1255 of 1997, pending before the learned Judicial Magistrate, First Class. Vadodara.

(2.) Respondent No. 2 filed the complaint before the learned Judicial Magistrate. First Class. Vadodara, alleging that he is the proprietor of Radhe Milk Supply and he was having business relation with M/s. Radhekrishna. Dairy Products Private Limited, Ahmedabad. The petitioner. Joitaram K. Patee, was the Director of M/s. Redhekrishna Dairy Products Private Limited, Because of business relationship with the petitioner, the complainant had rendered financial help to the petitioner to the tune of Rs. 4 lakhs. It is further alleged in the complaint that the petitioner had given cheque to the complainant, bearing No. 445385, dated September 7, 1996, for an amount of Rs. 4 lakhs drawn on Manekchowk Cooperative Bank Limited, of Vatva Branch, Ahmedabad. As per the complaint when the cheque was deposited for realisation it came to be returned with endorsement stop payment on November 26. 1996. Thereafter immediately, the complainant contacted the petitioner on phone, when, it was conveyed that because of shortage of funds the cheque may not be deposited until the first week of February, 1997. It is further alleged in the complaint that, it was assured by the petitioner on phone that the petitioner would be having sufficient funds in the account and. therefore the complainant can deposit the cheque in the first week of February, 1997 and the cheque will not be bounced back. The complainant has further alleged that relying upon the assurance given by the petitioner the said cheque was deposited again on February 7, 1997 in the Bank. But on the second time also the cheque was returned with endorsement stop payment on February 10. 1997. The said intimation was sent by the Banker of the complainant on February 14, 1997. It is alleged in the complaint that in fact, there was no sufficient fund in the account of the petitioner and, therefore, in the guise of stop payment the said cheque was not cleared. It is further alleged that on February 1.7. 1997 the complainant has sent a statutory notice through his Advocate by registered A.D. post to the petitioner about the dishonour of the cheque in question. The said notice was received by the petitioner on February 17, 1997 but was not replied by the petitioner and. therefore on March 29. 1997 the complainant filed the complaint before the learned Judicial Magistrate. First Class. Vadodara, for the offences punishable under Section 138 of the Negotiable Instruments Act, 1881 ('Act' for short) against the petitioner. After verifying the contents of the complaint the learned Judicial Magistrate. First Class Vadodara took cognizance of the offences and issued process against the petitioner which order is challenged by the petitioner by way of filing this Criminal Misc. Application under Section 482 of the Code.

(3.) It is contended in this application that the cheque in question was stolen and therefore a public notice to that effect was published in the daily newspaper. Gujarat Samachar, on August 9, 1996 and, therefore the Bank of the petitioner was instructed to stop payment of the above cheque. The case of the petitioner is that there are dues of Rs. 9 lakhs to be recovered from the original complainant and, therefore, they have filed Summary Civil Suit No. 1265 of 1997 in the City Civil Court at Ahmedabad. It is the further contention of the petitioner that no offence under Section 138 of the Act is made out, as the complaint is time barred.