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2002 DIGILAW 466 (GUJ)

Ghanshyam P. Soni v. STATE

2002-06-27

A.M.KAPADIA

body2002
A. M. KAPADIA, J. ( 1 ) IN this petition which is filed under section 482 of the Code of Criminal procedure, 1973 (the codefor short), the petitioners against whom Criminal complaint No. 3215 of 1999 is registered and process is issued thereon in the Court of Judicial Magistrate First Class, vadodara, on the basis of the complaint filed by respondent No. 2 for commission of the alleged offences under Section 138 of the Negotiable Instrument Act, 1881 (the act for short) have prayed to quash and set aside the said complaint as well as issuance of process issued thereon, on the grounds stated in the petition. ( 2 ) IT is stated in the petition that respondent No. 2 who is the original complainant has filed complaint No. 3215 of 1999 in the Court of JMFC, Vadodara under section 138 of the Act on October 25, 1999 against the present petitioners. It is alleged in the said complaint that on September 5, 1999 petitioners No. l has issued a cheque bearing No. 0001921 drawn on Anyounya saharaki Mandli Ltd. Vadodara for Rs. l,50,000/ (One lakh fifty thousent only) in favour of respondent No. 2 towards the agreement. The respondent No. 2 has presented the said cheque for encashment in his account in the Union Bank Of India, vadodara but the same was not encashed and dishonoured. As per the bank invoice it was returned due to "insufficient fund" The said information was received by the respondent No. 2 on September 8, 1999. As per the complaint, respondent No. 2 issued the statutory notice dated September 18, 1999 and demended the amount mentioned in the said cheque. The petitioners have not replied the said notice and hence committed the offence under Section 138 of the Act. Hence the respondent No. 2 filed the complaint against the petitioners. The petitioners have approached learned JMFC by filling discharge application dated january 1, 2001 vide Exhibit-10 which came to be rejected vide order dated May 5, 2001. ( 3 ) IT is contended in the petition that the prima facie case against the petitioners for commission of the alleged offences under Section 138 of the Act as the cheque is not signed by petitioner No. 2, nor petitioner No. 2 had issued the said cheque to respondent No. 2. ( 3 ) IT is contended in the petition that the prima facie case against the petitioners for commission of the alleged offences under Section 138 of the Act as the cheque is not signed by petitioner No. 2, nor petitioner No. 2 had issued the said cheque to respondent No. 2. It is further contended that petitioner No 2 to sell the property situated on 2nd and 3rd floor of siddhnath Complex on June 22, 1998, but due to same mutual understanding, an agreement to sale against which cheques were given for relinquishing the rights over the said property acquired by virtue of agreement in which a clause was agreed that if the cheques would return unpaid the agreement to sale and possessory receipt would come in existence and according to the say of the respondent No. 2 the cheque was returned due to insufficient fund from the account of petitioner No. l and hence the respondent No. 2 filled a reguler Civil Suit No. 1385 of 1999 for declearation that respondent No. 2 has right by virtue of the agreement to sale dated June 22. 1998. It is the say of the petitioners that since respondent No. 2 has filed the Civil suit for declaration on the basis of agreement to sale June 22, 1988, and the agreement entered on August 23,1999 does not remain in force and hence the cheques given against the agreement for relinquishing the right remains no more in existence and thus no legal debt by virtue of the agreement dated August 23, 1999 remain in force against the petitioner. Therefore, there is no illegal debt or liability, as alleged in the complaint on the part of the petitioners towards respondent no. 2 and the complaint is filed with malice vengeance with some oblique motive and therefore, it is not tenable and, hence it is prayed to quash the said complaint. ( 4 ) I have heard Mr. Parthiv Shah, learned advocate for the petitioners, Mr. K. C. Shah, learned APP for respondent no. 2. 2 and the complaint is filed with malice vengeance with some oblique motive and therefore, it is not tenable and, hence it is prayed to quash the said complaint. ( 4 ) I have heard Mr. Parthiv Shah, learned advocate for the petitioners, Mr. K. C. Shah, learned APP for respondent no. 2. I have also perused the averments made in the memo of the petition, grounds set out therein, the original complaint and the documents consisting of xerox copies of the various agreements, copy of the plaint of Regular Suit No. 1385 of 1999 as well as the order dated May 5, 2001 recorded by the learned JMFC, Vadodara by which discharge application came to be rejected. ( 5 ) THERE is no manner of doubt that the petitioner No. 2 has entered into an agreement with respondent No. 2 for sale of the property situated on 2nd and 3rd floor of Siddhnath Complex on June 22, 1998. Thereafter, due to some mutual understanding, an agreement was made on august 23,1999 for cancellation of the said agreement and in consideration thereof, petitioner No. 2 has issued three cheques of different dates on behalf of petitioner No. 2 who is the wife of petitioner No. l and the owner of the original property as well. There is also no dispute that by virtue of the agreement dated June 22, 1998, respondent No. 2 has paid Rs. 2,00,000/- by way of consideration as against total sale consideration of Rs. 2,21,000/- Therefore, admittedly, respondent No. 2 a creditor and the petitioner No. 2 is a debtor and on her behalf petitioner No. 1 had issued three different cheques for cancellation of the said agreement. Out of those three cheques, respondent No. 2 had only placed one cheque dated September 5, 1999 for encashment which was rebounced. So far as Regular Suit No. 138 of 1999 is concerned, which is filed by respondent No. 2 against the present pettioners as well as one Sanjaybhai Bapulal Bhavsar for substantive relief of injunction as the petitioners have not complied with the terms and conditions mentioned in the agreement dated Augst 23, 1999 for cancellation of the agreement to sale which was proposed to be sold to respondent No. 2, therefore admittedly, the petitioners have not paid total consideration of Rs. 4 lakhs for cancellation of the said agreement, therefoe, there is outstanding debt against the petitioners. In view of this agreement, Section 138 of the Act is clearly attracted. Both the petitioners are husband and wife and the property stood in the name of respondent No. 2 who was entered into agreement and subsequent agreement of cancellation on behalf of petitioner No. 2 petitioner No. 2 has issued three different cheques out of which first cheque dated september 5, 1999, on being presented by respondent No. 2 for encashment has rebounced, threfore, there is clear intention on the part of the petitioners not to pay the outstanding debt to the respondent No. 2 ( 6 ) IN the case of S. A. NANJUNDESWARA V. M. S. VARLAK agrotech PVT. LTD. 2002 AIR SCW page 4, Supreme Court has said that if statements taken on the face value making out offence, quashing of proceedings by high Court by trying to shift material on record is erroneous. ( 7 ) IN the case of STATE OF karnataka M. DEVENDRAPPA AND another, 2002 AIR SCW PAGE 286, supreme Court has said that in a petition filed under Section 482 of the Code, maticulous analysis of the case before the trial Court to find out whether the case would end in conviction of acquittal is not necessary. ( 8 ) APPLYING the principle laid down by the apex court in the above referred two judgements, to the facts of the present case, at the cost of repetition, be it stated that; on having statements taken on the prima facie offence is made out and, therefore, none of the contentions advanced by Mr. Parthiv Shah, learned advocate for the petitioners are tenable. ( 9 ) SEEN in the above context, there is no valid reason or justifiable ground to quash the Criminal Complaint No. 3215 of 1999 and issuance of process threon, hence the petition deserves to be rejected at the admission stage itslef. ( 10 ) FOR the foregoing reasons, petition fails and accordingly it is rejected. Notice is discharged. Interim relief granted earlier shall stand vacated. ( 11 ) AT this stage, Mr. ( 10 ) FOR the foregoing reasons, petition fails and accordingly it is rejected. Notice is discharged. Interim relief granted earlier shall stand vacated. ( 11 ) AT this stage, Mr. Parthiv Shah, learned advocate for the petitioners urged that interim relief granted by this court while issuing notice, which has remaind operative till today may further be continued for a period of 6 weeks hereof to enable the petitioner to approach the higher forum. Mr. G. T. Dayani, learned advocate for respondent No. 2 has objected against continuing the interim relief because according to him, the complaint which has been filed in the year 1999, has not been prosecuted further because of the interim relief granted by this court. ( 12 ) I have given anxious thought to the request made by Mr. Parthiv Shah, learned advocate for the petitioners and I am of the opinion that since the complaint which lodged in the year 1999 has not been proceeded further because of the interim relief granted by this Court and, this Court has also considered all the submissions advanced by the learned advocate for the petitioners and which have been negatived by this Court, on the facts and circumstances of the case, the relief claimed by the petitioners cannot be granted. Besides this, even the learned magistrate has also rejected the application filed by the petitioners for discharging them from prosecution, therefore, the prayer made by Mr. Parthiv shah, learned advocate for the petitioners cannot be accepted. Hence the said prayer is rejected. .