G L PUROHIT Vs. ISHAQ ALI ROSHAN

JUDGEMENT

(1.) This order shall also govern the disposal of M.Cr.C. No. 1763/07 filed by the same petitioner against the same respondent in respect of Criminal Case No. 2505/2000 pending in the Court of Special Judicial Magistrate, Indore as the facts of both the cases are almost similar and the questions which have been raised in both these petitions are also similar. A copy of this order be retained in the record of M.Cr.C. No. 1763/07 also.

(2.) This petition (M.Cr.C. No. 1760/07) has been filed under Section 482 of Cr.P.C. for quashing the proceeding of criminal Case No. 2502/2000 pending in the Court of Special Judicial Magistrate, First Class, Indore against present petitioner for the trial of the offence punishable under Section 138 of the Negotiable Instruments Act, 1981 (hereinafter referred to as 'the Act' for brevity).

(3.) The short facts of the case are that the respondent/complainant filed a criminal case under Section 138 of the Act against present applicant contending that present petitioner issued a cheque bearing No. 045993 for Rs. 18,04,500/- dated 30.6.2000 drawn on Bank of Baroda, Overseas Business Branch, Nariman Point, Mumbai. When the said cheque was put for realization in the bank of the respondent/complainant, then it was returned with the memo of dishonour dated 11.7.2000 with an endorsement "Refer to Drawer" and thus complainant could not receive the payment. Then a notice was issued by the complainant to the present petitioner by registered post AD through his Advocate, but the payment was not made within 15 days from the date of receipt of notice. Thereafter, within limitation the complaint was filed bearing signature of the complainant. The complaint was filed through Special Power of Attorney holder of the complainant. The Special Power of Attorney holder, Qutubuddin was examined by the Judicial Magistrate, First Class under Section 200 of Cr.P.C. and then cognizance of the offence was taken, and order for issuance of summons to the present petitioner was passed. Petitioner appeared before learned trial Court and then filed an application raising objection regarding the tenability of the complainant, on the ground that the Special Power of Attorney holder did not have any persons knowledge of the transaction, because he resides at Mumbai, whereas all transactions and the cheque given to the complainant, were at Sharjah and, therefore, on the basis of the statement given by said Special Power of Attorney holder cognizance could not have been taken. The said application was dismissed by learned Judicial Magistrate, First Class vide order dated 21.11.2006, hence the petitioner has come before this Court with a prayer for exercising inherent powers available to this Court under Section 482 of Cr.P.C., for quashing the proceedings of a criminal case.