1. The present application u/s.482 of the Code of Criminal Procedure has been preferred by the applicant herein – original accused to quash and set aside Criminal Case No.28873 of 2010 pending in the Court of learned 13th Additional Chief Judicial Magistrate, Surat filed by respondent No.1 herein – original complainant for the offence punishable u/s.138 of the Negotiable Instruments Act.
2. Respondent No.1 herein – original complainant has filed/instituted the impugned complaint against the applicant herein for the offence punishable u/s.138 of the Negotiable Instruments Act as Proprietor of Mahalakshmi Silk Mill for dishonour of cheque No.096209 issued by the aforesaid Mahalakshmi Silk Mill, a proprietary firm and signed by its Proprietor. That in the said complaint, the learned Magistrate has directed to issue summons against the applicant herein for the offence punishable u/s.138 of the Negotiable Instruments Act. Hence, the applicant herein – original accused has preferred the present application u/s.482 of the Code of Criminal Procedure to quash and set aside the impugned complaint/Criminal Case.
3. Mr.F.B.Brahmbhatt, learned advocate appearing on behalf of the applicant has vehemently submitted that as such the applicant has not committed any offence as alleged for the offence punishable u/s.138 of the Negotiable Instruments Act. It is submitted that admittedly cheque in question is issued by Mahalakshmi Silk Mill through its Proprietor and drawn from the bank account maintained by Mahalakshmi Silk Mill. It is submitted that the applicant is neither Proprietor of the said Mahalakshmi Silk Mill, who has issued cheque in question nor the applicant is signatory to the said cheque in question, which has been dishonoured and the said cheque is not drawn from the bank account maintained by the applicant. Therefore, it is submitted that the applicant cannot be said to have committed the offence punishable u/s.138 of the Negotiable Instruments Act for dishonour of cheque issued by/for Mahalakshmi Silk Mill, a proprietorship firm. Mr.F.B.Brahmbhatt, learned advocate appearing on behalf of the applicant has relied upon the decisions of this Court rendered in the case of Rajnarayan Baujnath Yadav V/s. State of Gujarat & another reported in 2006(1) GLH 293 as well as in the case of Mahendrakumar Tulsibhai Patel V/s. State of Gujarat and another reported in 2008(1) GLH 196. By making above submissions and relying upon above decisions, it is requested to quash and set aside the impugned complaint by submitting that to continue the criminal proceedings against the applicant would be unnecessary harassment to the applicant and the same shall be abuse of process of law and Court.
4. Though the present application was called out twice today, learned advocate appearing on behalf of respondent No.1 – original complainant has chosen to remain absent. Under the circumstances, this Court has no other alternative but to proceed further with the present application ex-parte.
5. Mr.L.B.Dabhi, learned Additional Public Prosecutor appearing on behalf of the respondent-State has requested to pass an appropriate order in the facts and circumstances of the case.
6. Heard Mr.F.B.Brahmbhatt, learned advocate appearing on behalf of the applicant and Mr.L.B.Dabhi, learned Additional Public Prosecutor appearing on behalf of respondent No.2- State and considered the impugned complaint as well as documents produced by the applicant. It appears that the criminal complaint filed by respondent No.1 herein – original complainant for the offence punishable u/s.138 of the Negotiable Instruments Act for dishonour of cheque No.096209, which was issued on behalf of Mahalakshmi Silk Mill and the applicant is described as Proprietor of the said Mahalakshmi Silk Mill. However, it appears that as such the applicant is not a Proprietor of the said Mahalakshmi Silk Mill and the applicant is not signatory to the cheque in question. Even the aforesaid cheque in question is not drawn from the bank account maintained by the applicant. Under the circumstances, it cannot be said that the applicant has committed an offence punishable u/s.138 of the Negotiable Instruments Act. Considering the decisions of this Court rendered in the case of Rajnarayan Baujnath Yadav (supra) as well as in the case of Mahendrakumar Tulsibhai Patel (supra), the impugned complaint for the offence punishable u/s.138 of the Negotiable Instruments Act cannot be sustained and the same deserves to be quashed and set aside. However, if the original complainant is of the opinion that the applicant has given the said cheque pausing himself as Proprietor of the said Mahalakshmi Silk Mill and thereby he has cheated the original complainant and has committed any other offence punishable under the Indian Penal Code, it will be open for the original complainant to initiate an appropriate proceedings under the Indian Penal Code and/or to file Suit for recovery of the cheque amount, which may be considered in accordance with law and on merits.
So far as offence punishable u/s.138 of the Negotiable Instruments Act is concerned, as the ingredients of Section 138 of the Negotiable Instruments Act are not satisfied and, therefore, the applicant cannot be prosecuted for the offence punishable u/s.138 of the Negotiable Instruments Act.
7. In view of the above and for the reasons stated hereinabove, the present application succeeds and the impugned complaint being Criminal Case No.28873 of 2010 pending in the Court of learned 13th Additional Chief Judicial Magistrate, Surat filed by respondent No.1 herein – original complainant for the offence punishable u/s.138 of the Negotiable Instruments Act is hereby quashed and set aside. However, the same shall be without prejudice to the rights and contentions of the original complainant to initiate any other proceedings either for the offence punishable under Indian Penal Code and/or appropriate proceedings for recovery of the cheque amount and as and when such proceedings are initiated, the same be considered in accordance with law and on merits and without in any way being influenced by the present order. Rule is made absolute to the aforesaid extent.
[M.R.SHAH,J] *dipti