SANJAYBHAI NATUBHAI DESAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE applicant herein is original accused No. 2 in Criminal Complaint No. 972 of 2001 filed in the Court of Judicial Magistrate (First Class), Padra. The application has been preferred with a prayer to quash and set aside the complaint filed by respondent No. 2 herein and the process issued therein in so far as the applicant is concerned.

(2.) THE brief facts relevant for the present are that : respondent No. 3 herein, a partnership firm, is the original accused No. 1. The case of respondent No. 2, the original complainant, is that as Shri Rajnikant Nagjibhai Patel, a partner of accused No. 1-firm was in need of funds, on 24. 03. 2001 cheque No. 168149 from account No. 239 of Swaminarayan Co-operative Bank Limited, Harni Road Branch, Vadodara was presented and out of total sum of Rs. 3,50,000/- after deducting commission amount of Rs. 12,600/-, cash amount of Rs. 3,37,400/- was handed over to Shri Rajnikant Nagjibhai Patel, partner of accused No. 1. Against the said discounted payment, a cheque dated 24. 05. 2001 was handed over to the complainant. That the complainant called accused No. 1 on telephone on the due date and was assured by accused No. 1 that all the cheques may be presented on 13. 07. 2001 and the said cheque shall be honoured, therefore, the complainant presented the cheque in the bank on 13. 07. 2001 with Bank of Baroda, Padra Branch but the cheque was returned with an endorsement of "insufficient funds'. On the basis of aforesaid facts the complainant has alleged that both the accused had criminal intention to defraud the complainant and had committed criminal breach of trust, had cheated the complainant and, therefore, the accused must be punished under the provisions of Section 138 of the Negotiable Instruments Act, 1881.

(3.) HEARD the learned advocate for the applicant, original accused No. 2, and learned advocate for respondent No. 2, the original complainant. Though served, none is present on behalf of respondent No. 3, original accused No. 1.