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2013 DIGILAW 374 (GUJ)

Mahesh Dahyabhai Ahir v. State of Gujarat

2013-07-03

K.M.THAKER

body2013
ORDER : 1. Heard Mr. N.D. Nanavati, learned Senior Counsel with Mr. N.D. Buch, learned advocate for the petitioner, Mr. Girish M. Das, learned advocate for respondent no. 2 and Mr. K.L. Pandya, learned Additional Public Prosecutor for the respondent-State. 2. In the present petition, the petitioner has prayed the following reliefs:- 13(B) Your Lordships be pleased to quash the proceedings of Criminal Case No. 2753 of 2010 pending in the Court of the learned Chief Judicial Magistrate, Jungadh. 13(C) Pending admission, hearing and final disposal of this petition, Your Lordships be pleased to stay further proceedings of Criminal Case No. 2753 of 2010 pending in the Court of the learned Chief Judicial Magistrate, Junagadh. 3. The proceedings of present petition arise in view of the complaint filed by present private respondent under Section 138 of the Negotiable Instruments Act, 1881 on the allegation that the petitioner purchased one excavator machine and paid the sale consideration by way of cheque however, the cheque issued by the petitioner herein was dishonored by the bank and that therefore, respondent No. 2-Original complainant issued statutory notice. It is also claimed that even after notice, the petitioner did not make the payment, and therefore, the respondent No. 2-Original Complainant filed the complaint which is impugned in the present proceedings. 4. The petitioner has claimed that the excavator machine, purchased from the respondent turned out to be defective and the petitioner repeatedly requested the respondent No. 2- Original Complainant to replace or repair the machine, but respondent No. 2-Original Complainant did not repair the machine, and therefore, the petitioner had categorically instructed the respondent to not deposit the cheque for encashment. 5. It is also claimed that in view of such facts, considering the possibility that despite such instruction, respondent may deposit the cheque, the Bank was instructed to "Stop Payment" if the respondent present the cheque for encashment. 6. It is submitted that there is genuine and bona-fide and substantial civil dispute between the parties and the liability of the petitioner to make the payment would arise only if the respondent No. 2 had complied the contract for supply of the machine as per terms and conditions of the contract. However, fact reveals that respondent failed to supply machine as per the agreement. However, fact reveals that respondent failed to supply machine as per the agreement. Therefore, petitioner is within his legal rights to not make the payment and therefore, any offence under Section 138 of the Negotiable Instruments Act, 1881, is not committed. Learned Counsel for the respondent has opposed the petition and contended that the grounds on which present petition is preferred, are not sustainable since there is no dispute about the fact that petitioner had drawn the cheque from its account for payment of sale consideration but when the cheque was presented Bank for encashment dishonoured the said cheque and therefore, offence under Section 138 of the Negotiable Instruments Act, 1881 is committed. Hence, present petition may not be entertained. Having regard to the rival submissions by learned Senior Counsel for the petitioner and submission of learned Counsel for the respondents, it has emerged that the ground, on which the petitioner has preferred present petition amounts to defence of the petitioner, which can be raised before the Trial Court and as and when such contention/defence is raised by the petitioner, it would be considered and decided by the Trial Court on its own merits and on the basis of material/evidence available on record. However, at this stage, it would not be permissible or justify for this Court to entertain such contention and quash the complaint pending before the Trial Court on the grounds which are required to be established by the petitioner in accordance with law. Hence, present petition does not deserve to be, and consequently it is not entertained. It is, however, clarified that the Court has not entered into merits of the allegations and/or defence and it would be open to the petitioner to raise all such contentions, as may be available in law and in light of facts of the case and the contentions, which may be raised by the petitioner would naturally be decided by the Trial Court in accordance with law and on the basis of material available on record. For the foregoing reasons the petition is not entertained and it is hereby disposed of. Notice is discharged. Ad-interim relief, if any, stands vacated. Direct service is permitted. Petition disposed of.