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Madhya Pradesh High Court · body

2016 DIGILAW 917 (MP)

Gopal Das v. Naval Kishore Garg

2016-10-11

G.S.AHLUWALIA

body2016
ORDER : G.S. Ahluwalia, J. The present petition under Section 482 of Cr.P.C. has been filed against the order dated 09.09.2016 passed by First Additional Sessions Judge, Sabalgarh, District Morena in Criminal Revision No. 2900113/2016 arising out of order dated 10.05.2016 passed by Judicial Magistrate First Class, Sabalgarh, District Morena in Criminal Case No. 704/2013. 2. The facts of the case are that respondent - complainant has filed a complaint under Section 138 of Negotiable Instruments Act (for short, 'NI Act') inter-alia alleging that he is a businessman carrying on his business in Sabalgarh. On 03.04.2012, the applicant/accused had taken Rs.2,75,000/- for his personal requirements and he had agreed to pay the interest @ 1% per month. After calculating the final outstanding, the applicant/accused gave a cheque of Rs.3,00,000/- to the complainant on 18.02.2013. The cheque was presented before the Bank, however, the same was returned back with an endorsement that the 'account is closed'. The complainant issued a registered notice, which was received by the applicant on 18.04.2013, however, the accused did not make the payment even after receipt of notice. It was further stated in the complaint that a blank paper by way of reply was sent by the applicant. Thus, it was pleaded that the applicant has committed an offence punishable under Section 138 of NI Act. 3. By order dated 10.05.2016, the trial court framed the charges against the applicant. Being aggrieved by said order, the applicant filed a criminal revision which has been dismissed by the court below by order dated 09.09.2016. 4. Challenging the order of the trial court as well as revisional court, it was contended by the applicant that as the cheque in question has been issued by the firm namely Janhit Enterprises and since the firm has not been made as an accused, therefore, on this ground only, the complaint is liable to be dismissed. 5. The applicant along with the petition has filed a copy of the reply to the notice as Annexure P-3 in which it is specifically stated that Janhit Enterprises was already closed in the year 2009 and, therefore, no question arises for issuing any cheque by Janhit Enterprises on 18.02.2016. 6. It is not the case of the complainant that the amount was given to the firm, whereas, it is specifically alleged that the amount was given to the applicant/accused for his personal requirements. 6. It is not the case of the complainant that the amount was given to the firm, whereas, it is specifically alleged that the amount was given to the applicant/accused for his personal requirements. Then on the basis of said averments, it was not necessary on the part of the complainant to make the firm as an accused. 7. It was further contended by the counsel for the applicant that as the cheque was not issued by the firm in discharge of its legal liability, therefore, the complaint under Section 138 of NI Act is not maintainable. 8. If the reply to the show cause notice, which has been filed as Annexure P-3 along with this petition is considered in proper perspective, then it would be clear that the firm was already closed in the year 2009 and coupled with the fact that the complainant has specifically pleaded in his complaint that the respondent/accused had taken an amount of Rs.2,75,000/- for his personal requirements, therefore, at this stage, it cannot be decided that whether the cheque was issued by the firm in discharge of its legal liability or the applicant in order to repay the amount deliberately issued the cheque of Janhit Enterprises. In fact, it is the case of the complainant that the cheque has been signed by the applicant/accused in discharge of his personal legal liability, therefore, this contention of the applicant is also liable to be rejected. 9. Furthermore, it is well established principle of law that while exercising powers under Section 482 of Cr.P.C., this Court cannot adjudicate upon the factual dispute which are raised by the parties. The ground on which the present petition has been filed are the grounds of defence which are required to be proved in accordance with law and, therefore, the present petition is dismissed being devoid of merits.