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2011 DIGILAW 613 (GUJ)

Sureshbhai Narsinhbhai Patel v. State of Gujarat

2011-08-17

M.R.SHAH

body2011
ORDER : M.R. Shah, J. Rule. Mr. K. P. Raval, learned Additional Public Prosecutor waives the service of notice of rule on behalf of the respondent No.1 and Ms. Nidhi Japee, learned advocate waives the service of notice of rule on behalf of the respondent No.2. 2. In the facts and circumstances of the case and with the consent of the learned advocates appearing on behalf of the respective parties, present petition is taken up for final hearing today. 3. Present petition under section 482 of the Code of Criminal Procedure has been preferred by the petitioner original accused No.1 to quash and set aside the impugned complaint being Criminal Case No.3250 of 2010 filed by the respondent No.2 - original complainant, pending in the court of learned Chief Judicial Magistrate. Sabarkantha at Himmatnagar and to quash and set aside the impugned order passed by the learned Chief Judicial Magistrate issuing process against the petitioner herein for the offence punishable under Section 138 of the Negotiable Instruments Act. 4. The respondent No.2 herein - original complainant has filed Criminal Case No. 3250 of 2010 against the petitioner herein and one another, in the Court of learned Chief Judicial Magistrate, Sabarkantha at Himmatnagar for the offences punishable under Section 138 of Negotiable Instruments Act as well as under sections 420.406 and 114 of Indian Penal Code. 5. That the learned 2nd Civil Judge and Judicial Magistrate (First Class), Himmatnagar vide order dated 10/2/2010 has directed to take the complaint on record and to register the same and to issue process against the petitioner herein - original accused No.1 for the offence punishable under section 138 of Negotiable Instruments Act only. Being aggrieved by and dissatisfied with the same, the petitioner herein - original accused No. 1 has preferred present petition under section 482 of the Code of Criminal Procedure. 6. Mr. Being aggrieved by and dissatisfied with the same, the petitioner herein - original accused No. 1 has preferred present petition under section 482 of the Code of Criminal Procedure. 6. Mr. Prajapati, learned advocate appearing on behalf of the petitioner original accused No.1 has submitted that as such the petitioner cannot be held liable for the offence punishable under section 138 of Negotiable Instruments Act for dishonour of the cheque in question, as the petitioner is neither signatory to the cheque nor the cheque has been drawn from the bank account maintained by the petitioner, Therefore, relying upon the decision of this Court in the case of Mahendrakumar Tulsibhai Patel v. (The) State of Gujarat and another, reported in 2008 (1) GLH 196 : (AIR 2008 (NOC) 1001 (Guj), it is requested to quash and set aside the complaint against the petitioner herein original accused No.I so far as offence punishable under Section 138 of Negotiable Instruments Act is concerned and consequently the order passed by the learned Magistrate issuing process for the offence punishable under Section 138 of Negotiable Instrumerits Act. 7. Ms. Nidhi Japee, learned advocate appearing on behalf of the respondent No.2 - original complainant is not in a position to dispute the fact that the petitioner herein - original accused No.1 is neither signatory to the cheque nor the cheque has been issued from the bank account maintained by the petitioner, however, has submitted that the respondent No.2 - original complainant has filed the complaint being Criminal Case No.3250 of 2010 for the offences punishable under section 138 of Negotiable Instruments Act as well as under sections 420, 406 and 114 of Indian Penal Code also. However, the learned Magistrate has not issued process for the offences punishable under sections 420, 406 and 114 of Indian Penal Code. Therefore, it is requested to reserve the liberty in favour of the respondent Not - original complainant to initiate appropriate proceedings against the petitioner herein - original accused No. 1 as well as original accused No.2 and for the offences punishable under sections 420,400 and 114 of Indian Penal Code, which may be considered by the learned trial court in accordance with law and on merits. 8. Mr. 8. Mr. Prajapati, learned advocate appearing on behalf of the petitioner - original accused No.1 has submitted that as such the petitioner has not committed any offence, as alleged, even under sections 420, 406 and 114 of Indian Penal Code, however has requested that if the liberty is reserved in favour of the original complainant, to initiate appropriate proceedings against the petitioner herein - original accused No.1 for the offences punishable under sections 420, 406 and 114 of Indian Penal Code, suitable observations be made that it will be open for the petitioner herein - original accused No.1 to oppose the same, which may be considered in accordance with law and on merits. 9. Mr. K. P. Raval, learned Additional Public Prosecutor has requested to pass appropriate order considering the facts and circumstances of the case. 10. Heard the learned advocates appearing on behalf of the respective parties at length. 11. At the outset, it is required to be noted that the petitioner is the original accused No. I and process has been issued by the learned Magistrate against the petitioner for the offence punishable under Section 138 of Negotiable Instruments Act for dishonour of the cheque, which is admittedly not signed by the petitioner and even the cheque in question is not drawn from the bank account maintained by the petitioner. Under the circumstances: considering the provisions of Section 138 of the Negotiable Instruments Act as well as considering the decision of this Court in the case of Mahendrakumar Tulsibhai Patel (supra), the impugned order passed by the learned Magistrate, issuing process against the petitioner - original accused No. 1 for the offence punishable under Section 138 of the Negotiable Instruments Act cannot be sustained and the same deserves to be quashed and set aside and consequently, the complaint being Criminal Case No.3250 of 2010 against the petitioner herein original accused No.1 for the offence punishable under Section 138 of Negotiable Instruments Act, deserves to be quashed and set aside. However, the same shall not affect the right of the original complainant - respondent No.2 herein to initiate appropriate proceedings against the petitioner herein - original accused No. 1 as well as original accused No.2, for the alleged offences punishable under sections 420,406 and 114 of Indian Penal Code and as and when such proceedings are initiated, the same be considered in accordance with law and on merits, for which this Court has not expressed any opinion on merits. 12. In view of the above and for the reasons stated above and with the above liberty in favour of the original complainant - respondent No.2 herein, present petition is allowed and the impugned order passed by the learned 2nd Civil Judge and Judicial Magistrate (First Class). Himmatnagar dated 10/2/2010 in Criminal Case No.3250 of 2010, directing to process against the petitioner herein - original accused No.1 for the offence punishable under section 138 of Negotiable Instruments Act, is hereby quashed and set aside qua petitioner herein original accused No.1 and consequently, Criminal Case No.3250 of 2010 pending in the court of learned 2nd Civil Judge and Judicial Magistrate (First Class), Himmatnagar is also quashed and set aside qua for the offence punishable under Section 138 of Negotiable Instruments Act only that too against the petitioner herein - original accused No.1 only. Rule is made out to the aforesaid extent only. Petition allowed.