1. Heard learned counsel Mr. Malkan for the applicant, learned counsel Mr. Vyas for respondent no.1 (original complaint) and learned APP Mr. Raval for respondent no.2-State authority.
2. Learned counsel Mr. Malkan for the applicant takes me through relevant papers annexed with this petition like copy of the FIR so also copy of the private complaint filed under Section-138 of the Negotiable Instruments Act by the petitioner (original accused) against the respondent no.1 (original complainant). He also took me through the relief prayed by the respondent no.1 in his private complaint before the Magistrate so also the order passed by learned Magistrate dated 27/06/2011 below the private complaint of the respondent no.1. It is therefore, submitted that the instant private complaint filed by respondent no.1 is a counter blast to the earlier criminal complaint filed by the petitioner against the respondent no.1 for the offence punishable under Section-138 of the Negotiable Instruments Act. It is further submitted that the order dated 27/06/2011 passed by learned Magistrate below the private complaint of the respondent no.1 cannot be said to be an order either passed under Section-156(3) of the Criminal Procedure Code nor it can be said to be an order passed under Section-202 of the Criminal Procedure Code. It is further submitted that when the dispute regarding the cheques is already pending in the earlier criminal proceedings under Section-138 of the Negotiable Instruments Act, the subsequent private complaint is barred by Section-340 read with Section-195 of the Criminal Procedure Code.
3. However, learned advocate Mr. Vyas for the respondent no.1 took me through the relevant communication dated 18/06/2011 addressed to respondent no.1 herein by one Mr. Narayan Vadgwani and submitted that considering the communication, it is clear that it was the petitioner who misused the disputed cheques.
4. Having considered the submissions advanced on behalf of both the sides so also considering the fact that the earlier criminal proceeding filed by the petitioner herein against respondent no.1 for the offence punishable under Section-138 of the Negotiable Instruments Act is pending since 2001 as well as considering the order dated 27/06/2011 passed by the learned Magistrate below the private complaint filed by the respondent no.1 herein against the petitioner, Rule returnable on 21/02/2012. Learned counsel Mr. Vyas waives service of notice of rule on behalf of respondent no.1 and learned APP Mr. Raval waives service of notice of rule on behalf of respondent-State.
5. However, in the meanwhile no coercive steps shall be taken by the investigating officer qua the petitioner.
(J.C.UPADHYAYA, J.) (ila) Top