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2011 DIGILAW 836 (GUJ)

Madhusudan Laxidas Buva v. State of Gujarat

2011-12-16

M.R.SHAH

body2011
JUDGMENT : M.R. Shaah, J. Present application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "CrPC") has been preferred by the applicants herein - original accused Nos.3 and 2 to quash and set aside the complaint being Criminal Case No.128/2005 pending in the Court of learned Metropolitan Magistrate, Ahmedabad for the offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "NI Act"). 2. Respondent No.2 herein - original complainant has lodged the impugned complaint against the applicants herein and another for the offence under Section 138 of the Negotiable Instruments Act in the Court of learned Metropolitan Magistrate, Ahmedabad being Criminal Case No.128/2005 for dishonor to cheque No.0094113 dated 31.05.2005 drawn from the bank account of accused No.1. In the said complaint, the learned Metropolitan Magistrate has directed to issue summons against the applicants herein - original accused Nos. 3 and 2 and against original accused No.1 (signatory to the cheque and from whose bank account the cheque was drawn), for the offence under Section 138 of the Negotiable Instruments Act. Hence, the applicants herein - original accused Nos.3 and 2 have preferred the present application under Section 482 of the CrPC to quash and set aside the impugned complaint. 3. Shri P.P. Majmudar, learned advocate appearing on behalf of the applicants herein - original accused Nos.3 and 2 has vehemently submitted that as applicants are neither signatory to the cheque nor the cheque in question is drawn from the bank account maintained by them, it cannot be said that applicants have committed any offence under Section 138 of the Negotiable Instruments Act. It is submitted that admittedly the cheque in question has been issued by the original accused No.1 and drawn from his bank account. Therefore, it is submitted that ingredients of Section 138 of Negotiable Instruments Act have not been made out so far as the applicants herein - original accused Nos.3 and 2 are concerned. Shri Majmudar, learned advocate appearing on behalf of the applicants herein - original accused Nos. 3 and 2 has heavily relied upon the decision of this Court in the case of Mahendrakumar Tulsibhai Patel v. State of Gujarat and Anr. Shri Majmudar, learned advocate appearing on behalf of the applicants herein - original accused Nos. 3 and 2 has heavily relied upon the decision of this Court in the case of Mahendrakumar Tulsibhai Patel v. State of Gujarat and Anr. reported in 2008(1) GLH 196 in support of his prayer to allow the present Criminal Miscellaneous Application and to quash and set aside the impugned complaint so far as the applicants herein are concerned. 4. Shri V.M. Pancholi, learned advocate appearing on behalf of respondent No.2 herein original complainant is not in a position to dispute that the applicants are neither the signatory to the cheque which is dishonored nor the cheque in question has been drawn from the bank account maintained by them. He is also not in a position to show any decision contrary to the decision of this Court in the case Mahendrakumar Tulsibhai Patel (Supra). However, he has submitted that if this Court is inclined to quash and set aside the impugned complaint so far as the applicants herein - original accused Nos. 3 and 2 are concerned, it may be observed that the same shall be without prejudice to the rights and contentions of the original complainant and prosecution against accused No.1 and the trial Court to try the original accused No.1 in accordance with law and on merits and without in anyway being influenced by the present order. 5. Shri Dabhi, learned Additional Public Prosecutor has requested to pass appropriate order considering the facts and circumstances of the case. 6. Heard the learned advocates appearing for respective parties at length. It is an admitted position that the applicants are neither signatory to the cheque which has been dishonored nor the cheque in question is drawn from the bank account maintained by them. Under the circumstances, for the cheque which is dishonored, which is neither issued/signed by the applicants herein nor the same is issued from the bank account of the applicants, it cannot be said that the applicants have committed any offence under Section 138 of the Neotiable Instruments Act. The only allegation against the applicants is that the applicants promised that as and when the said cheque is deposited, the same shall be dishonored. The controversy raised in the present application is squarely covered by the decision of this Court in the case of Mahendrakumar Tulsibhai Patel (Supra). The only allegation against the applicants is that the applicants promised that as and when the said cheque is deposited, the same shall be dishonored. The controversy raised in the present application is squarely covered by the decision of this Court in the case of Mahendrakumar Tulsibhai Patel (Supra). Under the circumstances, considering the aforesaid facts and circumstances, when ingredients of Section 138 of the Neotiable Instruments Act are not satisfied so far as applicant Nos. 2 and 3 are concerned, impugned complaint against the applicants cannot be sustained and the same deserves to be quashed and set aside. However, the same shall be without prejudice to the rights and contentions of the original complainant against original accused No.1 and he shall be dealt in accordance with law and on merits without in anyway being influenced by the present order. 7. In view of the above and for the reasons stated above, present application succeeds. Impugned complaint being Criminal Case No.128/2005 pending in the Court of learned Metropolitan Magistrate, Ahmedabad for the offence under Section 138 of the Negotiable Instruments Act, is quashed and set aside so far as applicants herein - original accused Nos.2 and 3 are concerned. However, the same shall be without prejudice to the rights and contentions of the original complainant/prosecution against original accused No.1 and the learned Magistrate to proceed further with the trial against original accused No.1 in accordance with law and on merits without in anyway being influenced by the present order which is qua applicants herein - original accused Nos.2 and 3 only. Rule is made absolute accordingly. Application Succeeds.