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2017 DIGILAW 875 (GUJ)

Nayak Pranaykumar Manubhai v. State of Gujarat

2017-04-25

ALPESH Y.KOGJE

body2017
JUDGMENT : Alpesh Y. Kogje, J. 1. This petition is file with a prayer for quashing of Criminal Case No. 171 of 2012 filed before the Court of JMFC at Unjha. Such complaint is filed on 13.04.2012 under Section 138 of the Negotiable Instruments Act. 2. In the complaint, it is alleged that on account of financial difficulties faced by the accused (petitioner herein), he had borrowed amount of Rs. 5 lakhs from the complainant (respondent No. 2). It is alleged that cheque No. 302640 of SBI, Visnagar Branch dated 15.03.2012 for an amount of Rs. 3,50,000/- was issued in favour of respondent No. 2 in part satisfaction of the amount borrowed. When such cheque was deposited with the Bank, it was dishonoured with an endorsement that opening balance is insufficient. Statutory notice issued by respondent No. 2 was not responded to by the petitioner and hence, impugned complaint was filed before JMFC, Unjha. After recording of verification, process has been issued by order dated 13.04.2012. 3. This Court by order dated 20.06.2012 issued Rule notice and granted interim relief, by which further proceedings were stayed and the matter was ordered to be heard with Criminal Misc. Application No. 4987 of 2012. Thereafter, fresh Rule was issued by order dated 08.01.2016 and it appears that, Rule is served upon the complainant. However, the complainant (respondent No. 2 herein) has chosen not to appear despite effective service of Rule. 4. Heard Mr. Dakshesh Mehta, learned Advocate for the petitioner and learned APP Mr. K.L. Pandya for respondent No. 1-State. 5. Mr. Dakshesh Mehta, learned Advocate for the petitioner submitted that the petition, with which the present petition was ordered to be heard with, viz. Criminal Misc. Application No. 4987 of 2012, has been allowed by this Court by oral judgment dated 02.09.2016, wherein M. Case No. 9 of 2012, filed under the order of JMFC, Unjha, has been ordered to be quashed and set aside. He submitted that the present complaint is nothing but an arm-twisting method as the petitioner is husband of one Anjanaben, who is having an extramarital affair with the complainant (respondent No. 2 herein) and by taking advantage of such situation, he has come in possession of cheque in question and now the same is being misused. He submitted that the present complaint is nothing but an arm-twisting method as the petitioner is husband of one Anjanaben, who is having an extramarital affair with the complainant (respondent No. 2 herein) and by taking advantage of such situation, he has come in possession of cheque in question and now the same is being misused. Otherwise, he contended that the petitioner has no business relation with the respondent complainant and that at no point of time, there was any legally enforceable debt for which the cheque could have been issued by the petitioner. 6. Learned Advocate for the petitioner further submitted that as the petitioner was being threatened from time to time on account of illicit affair with Anjanaben, the petitioner has preempted legal consequences of several complaints at the hands of his wife and respondent No. 2 herein. He had, therefore, addressed notice dated 22.03.2012 to the concerned Police Station including DSP, Mahesana bringing to the notice that petitioner is likely to be faced with several and frivolous complaints and his fear is now a reality as his wife has also filed criminal case against him and as respondent No. 2 is having affair with his wife, has filed the present complaint. 7. Learned APP submitted that appropriate order may be passed by the Court. 8. Perusal of the case papers would clearly indicate that there does not appear to be any business or commercial relation between the petitioner and respondent No. 2 and as is indicated in the notice addressed to DSP, the wife of the petitioner and respondent have joined hands to initiate frivolous complaint. One such complaint which is filed by the wife being M. Case No. 9 of 2012 is already quashed by the coordinate Bench vide oral judgment dated 02.09.2016. 9. The absence of the respondent to defend his complaint before this Court is also conspicuous and therefore, it appears that respondent No. 2 is no more interested in prosecuting the complaint. In view of the aforesaid, there is no reason to withstand the present complaint, which appears to be filed with frivolous object of harassing the petitioner and thus, abuse of process of law. 10. In view of the aforesaid, Criminal Case No. 171 of 2012 filed before the Court of JMFC at Unjha is hereby ordered to be quashed and set aside. The petition is allowed. Rule is made absolute. 10. In view of the aforesaid, Criminal Case No. 171 of 2012 filed before the Court of JMFC at Unjha is hereby ordered to be quashed and set aside. The petition is allowed. Rule is made absolute. Petition Allowed.