JAYANTI BHAI VALJI BHAI KATARIA Vs. KAMLAKAR

JUDGEMENT

(1.) THIS petition has been filed by the applicant under Section 482, Cr. PC the quashment of the criminal complaint Case No. 1940/2004 (Kamlakar v. Jayanti Bhai) pending before the Court of CJM, Khandwa for the offence under Section 138 of the Negotiable Instrument Act (hereinafter N. I. Act for brevity ).

(2.) THE factual matrix of the case in brief are that the non-applicant complainant has filed a private complaint before the CJM Khandwa under Section 138 of the NI Act, with the allegations that the petitioner/applicant has borrowed cash loan of Rs. 2,81,138/- from the complainant and for this amount issued an advance cheque No. 737409 dated 10-6-2004 on his account maintained in State Bank of India, Narmada Nagar Branch, Khandwa payable to self. It is also contended by the non- applicant/complainant that the applicant had assured him that the loan amount shall be paid to him on the presentation of the cheque. The complainant deposited the aforesaid cheque in his account in Canara Bank at Khandwa on 14-7-2004. When this cheque was sent to State Bank of India Ganga Nagar Branch for realization of the cheque amount the aforesaid cheque had been return unpaid with the report that in sufficient funds in the account of the drawer. When this information received to the complainant then the non-applicant/complainant issued the statutory notice to the present petitioner by registered post demanding the amount of the concern cheque; and thereafter filed the aforesaid complaint under Section 138 of the NI Act. The learned Trial Court CJM Khandwa issued a summon to the present petitioner and after his appearance also framed the charge against the petitioner accused for the offence under Section 138 of the NI Act. Feeling aggrieved by the aforesaid order of cognizance and framing of charge petitioner has filed this petition under Section 482, Cr. PC for the quashment of the aforesaid proceeding.

(3.) IT is contended by the learned Counsel for the applicant that the disputed cheque was not in the name of the complainant/non-applicant. He has not "holder in due course" of the concern cheque, no liability for the payment of any debt is on the petitioner/accused. Therefore, in such circumstances the complaint under Section 138 of the NI Act is not maintainable. Consequently, prayed for the quashment of the aforesaid complaint.