SHANKU CONCRETES PRIVATE LIMITED Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Rule. Learned APP Mr. K.P. Raval waives service of rule on behalf of respondent No.1 and learned counsel Mr. D.D. Vyas waives service of rule on behalf of respondent No.2. With the consent of the learned advocates appearing for the parties, the matter is finally heard and decided today.

(2.) This application is filed by the petitioners under Sec. 482 of the Criminal Procedure Code to quash a criminal complaint. The extent of criminal liability, which arises under Section 138 of the Negotiable Instruments Act, 1881, is the real controversy, which is the crux of the matter, requires to be adjudicated. The transactions which are other wise exclusively commercial and subject to civil jurisdiction, now by enacting Section 138 of the Negotiable Instruments Act, attaches criminal liability against the persons involved in such transaction. A careful judicial scrutiny and a deep probe is necessary to set at rest the battle arising from the commercial transaction.

(3.) Looking to the brief facts of the case it is revealed that one Shanku Concretes Pvt. Ltd., Halol, District Panchmahals, a company incorporated through its Managing Director Mr. Jaidev Kotak, residing at Bombay, obtained advance of Rs. 15 lacs from one Balbhadrasinh Indrasinh Zala, residing at Surendranagar. It appears that vide an agreement dated 5/06/1995, the company Shanku Concretes Pvt. Ltd. through its Managing Director Mr.Jaidev Kotak entered into a contract with the above said Balbhadrasinh Indrasinh Zala and obtained advances by way of a debt of Rs.15 lacs to promote the production of the company. On that day, the amount of Rs. 15 lacs were paid to Mr.Jaidev Kotak, Managing Director. The agreement termed that the amount was to be returned after six months and during that period Managing Director Mr. Jaidev Kotak, as per the arrangement between the parties, issued seven cheques of due dates with a stipulation that if cheques are bounced, Balbhadrasinh Indrasinh Zala may take action against the company. Then, thereafter, a Criminal Case No. 132 of 1996 came to be filed by said Balbhadrasinh Indrasinh Zala in the court of Judicial Magistrate, First Class, at Lakhtar, against two accused - (i) Shanku Concretes Pvt. Ltd. and (2) Mr. Jaidev Kotak, under Section 138 of the Negotiable Instruments Act. It was alleged in the complaint by the complainant that the accused No.2 induced the complainant to believe that the post dated cheques referred to above, will be accepted by bank and that the complainant would get the amount of the cheque. Out of those cheques, the complainant deposited two cheques to the account of the Union Bank of India, which were bounced with an endorsement that the fund was insufficient in the account of the accused and, therefore, the complaint. The complainant gave notice to the accused on 6/05/1996, but within the statutory period of 15 days, the accused did not pay the amount. Learned Judicial Magistrate, First Class, Lakhtar, was pleased to issue process in the above said complaint against the accused. Summons was served on accused No.2, but he did not appear before the learned Magistrate and, therefore, the necessary procedure is being followed by the learned Judicial Magistrate.