SHARDABAI Vs. NIDHI

JUDGEMENT

(1.) THIS is a petition filed under Section 482 of Cr P.C. for quashment of criminal case registered as 866 of 2004 pending in the Court of JMFC, Indore.

(2.) SHORT facts of the case are that respondent No. 1 filed a complaint under Section 138 of Negotiable Instruments Act (which shall be referred hereinafter as "NI Act") against the petitioner and respondent No. 2 on 21.8.2002 alleging that respondent No. 1 is the owner of plot bearing No. 20 situated at Naya South Tukoganj, Indore. It was alleged that respondent No. 1 entered into an agreement to purchase the plot from the petitioner on 20.2.2001. It was alleged that respondent No. 1 paid a sum of Rs. 5 1,000/- to the petitioner as earnest money on 13.2.2001. It was alleged that since transaction which took place between the parties relating to purchase of plot was not materialized, therefore, amount of earnest money was to be returned by petitioner to respondent No. 1. It was alleged that upon the instruction of petitioner, respondent No. 2 issued the cheques of Rs. 51,000/- in favour of respondent No. 1. It was alleged that said cheque upon presentation were dishonoured. It was alleged that since the cheques were issued under the instruction of petitioner by respondent No. 2, therefore, petitioner has also committed the offence punishable under Section 138 of NI Act. It was prayed that after framing of charge and recording of evidence, petitioner and respondent No. 2 be convicted. After taking cognizance of the offence, an application was filed by the petitioner wherein it was alleged that since cheques have not been signed by the petitioner, therefore, petitioner cannot be prosecuted for an offence alleged to have been committed under Section 138 of NI Act. The application was opposed by the respondent No. 1. After hearing the parties, the application was dismissed on the ground that in view of the law laid down in the matter of Adalat Prasad v. Rooplal Jindal, AIR 2004 SC 4674 : 2006 (2) NIJ 596 (SC) learned Court below has no jurisdiction to entertain the application as cognizance of the offence has already been taken by learned Court below, hence the present petition has been filed.

(3.) LEARNED Counsel for the respondent No. 1 submits that since the respondent No. 1 entered into an agreement to purchase the plot from the petitioner and earnest money was paid by the respondent No. 1 to the petitioner and cheques were issued by respondent No. 2 upon the instructions of petitioner, therefore, petitioner has rightly been prosecuted by the respondent No. 1. It is submitted that since cognizance of the offence has already been taken by learned Court below, therefore, no illegality has been committed by learned Court below in dismissing the application filed by petitioner. It is submitted that in the facts and circumstances of the case, the petition filed by he petitioner be dismissed.