LAWS(MPH)-2009-2-23

ABHILASHA AGNIHOTRI Vs. DILIP

Decided On February 25, 2009
ABHILASHA AGNIHOTRI Appellant
V/S
DILIP Respondents

JUDGEMENT

(1.) PRAYER in this petition is for quashment of criminal case no. 37/3008 pending in the Court of JMFC, Kannod, District-Dewas whereby cognizance was taken by the learned Court below against the petitioner under section 138 of Negotiable Instruments Act, 1881 (which shall be referred hereinafter as "ni Act" ).

(2.) SHORT facts of the case are that respondent filed a complaint against the petitioner under Section 138 of NI Act in the month of January, 2008 alleging that a cheque of Rs. 45,00,000/- was issued by the petitioner in favour of respondent. Upon presentation the said cheque was dishonoured and the amount was not paid by the petitioner inspite of notice of demand. It was alleged that petitioner has committed the offence which is punishable under Section 138 of NI Act. After filing of the complaint cognizance was taken by the learned Court below against which the present petition has been filed.

(3.) LEARNED counsel for the petitioner argued at length and submits that the impugned order passed by learned Court below is illegal and deserves to be set-aside. It is submitted that since no statement of respondent was recorded under Section 200 and 202 of Cr. P. C, therefore, the complaint filed by the respondent deserves to be dismissed. It is submitted that it is no where stated in the complaint that the amount of Rs. 45,00,000/- was against which liability. Learned counsel for the petitioner placed reliance on a decision of Bombay High Court in the matter of roy Joseph Creado Vs. SK Tamisuddin 2008 (2) DCR 164 wherein Bombay high Court has observed that "verification of the complaint U/s 200 of the Cr. P. C. is necessary. The purpose of such verification is to determine prima facie truth into the allegations made in the complaint. The verification of complaint is essential U/s 200 of the Cr. P. C. before taking cognizance of the offence not only with a view to find out prima facie truth but also in order to identify the person who, in case the prosecution is found to be frivolous or mala fide, would be liable to answer the charge of perjury or to indemnify the accused persons. " On the strength of aforesaid decision learned counsel for the petitioner submits that the petition filed by the petitioner be allowed and the proceedings initiated against the petitioner be quashed.