YOGESHBHAI SHANTILAL SHAH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THIS petition has been preferred under Section 482 of the Code of Criminal Procedure, 1973 in relation to criminal case instituted by respondent No. 2 as Criminal Case No. 751 of 2000 before the Court of learned Judicial Magistrate (First Class), Porbandar under Section 138 of the Negotiable Instruments Act, 1881. The petitioner, original accused in the criminal case, has come forth with a case that respondent No. 2, original complainant, has abused the process of law by initiating the criminal proceedings in the following circumstances.

(2.) ACCORDING to the learned advocate for the petitioner, the complainant has made three different varying averments before three different authorities at different points of time : the first being by way of communication dated 01. 12. 1999 addressed to Collector, Ahmedabad, the second being communication being dated 14. 12. 1999 in the form of notice by an advocate under provisions of Sections 138 and 141 of the Negotiable Instruments Act, 1881 as well as Sections 406 and 420 of the Indian Penal Code and the third being before the Court of Judicial Magistrate (First Class), Porbandar when proceedings were initiating vide application dated 17. 01. 2000. It was submitted that the petitioner is running a proprietary concern by the name of Shreeji Agency. That there were good relations with the Manager, Accountant and Directors of another concern named M/s. Union Bearing India Limited and, therefore, the complainant and various other persons / employees of the said M/s. Union Bearing India Limited used to visit the office of the petitioner off and on. That the petitioner found two cheques bearing No. 944426 and 944427 of current A/c. No. 2680 of Shreeji Agency containing signature and stamp of proprietor as having been misplaced/lost and the petitioner had a suspicion that the three persons named in the notice dated 27. 06. 1999, including the complainant, had taken away the said cheques surreptitiously. Therefore, the petitioner had issued a notice through the advocate on 27. 06. 1999. That prior thereto the Bank Manager of Dena Bank, Gandhi Road Branch, Ahmedabad had been intimated on 19. 06. 1999 to stop payment of the said two cheques. It was therefore, submitted that the case sought to be created by the complainant regarding the complainant having advanced a friendly loan to the petitioner was prima facie not believable and the entire complaint, based on issuance of two cheques of Rs. 1,50,000/- each against outstanding dues of Rs. 3,00,000/-, was only a bogus story. That the bona fides of the complainant were not clean in as much as for a cheque of Rs. 1,50,000/- proceedings had been initiated at Porbandar by depositing one cheque i. e. cheque bearing No. 944427 at Porbandar, while depositing the other cheque bearing No. 944426 at Mumbai with Canara Bank, Borivali (West) Branch and thereafter initiating proceedings before the Court of Metropolitan Magistrate, Borivali, Mumbai. That if the complainant was really a creditor of the petitioner the complainant would have deposited the cheques in the same bank account, but it was only with an intention to harass the petitioner that the two cheques were deposited at two different places in two different banks. That even the narration in the complaint filed before the Court of Judicial Magistrate (First Class), Porbandar, the communication to Collector, Ahmedabad and the notice through the advocate bore different versions indicating that the complaint was not genuine. The learned advocate therefore urged, that in the circumstances, the proceedings were required to be quashed and set aside in absence of any prima facie case having been made out.

(3.) IT is apparent that the case of the complainant, on the basis documents on record, was prima facie found to be maintainable as noted by the Court of Judicial Magistrate (First Class), Porbandar while issuing summons. The documents, which have been brought on record in the present proceedings in the form of communication to Collector, Ahmedabad as well as the averments made in relation to proceedings before Mumbai Court do not appear on record of Court of Judicial Magistrate (First Class), Porbandar and on the basis of the said documents and averments it is not possible to state that the learned Magistrate has committed any error in entertaining the complaint. The factum of two cheques having been deposited at Porbandar and Mumbai is at the best an equivocal fact and it is not possible to draw an adverse inference at this stage without any evidence in this regard being recorded. It cannot be stated that a person is not entitled to deposit two different cheques, may be for identical amount and may be for recovery of outstanding dues of the same transaction, in two different banks at two different places. The notice issued by the advocate would only contain averments in relation to the cheque deposited at Porbandar and, therefore, even the said so-called discrepancy cannot be termed to be a discrepancy which is material in nature so as to warrant interference.