1. As common question of law and facts arise in both these petitions and they are between the same parties, both these petitions are being decided and disposed of by this common judgement.
2. Special Criminal Application No.2153 of 2007 has been preferred by the applicants herein – original accused to quash and set aside the impugned complaint being Criminal Case No.2647 of 2006 pending in the Court of learned Chief Judicial Magistrate, Vadodara filed by respondent No.2 herein – original complainant for the offence punishable u/s.138 of the Negotiable Instruments Act,1881.
Special Criminal Application No.2154 of 2007 has been preferred by the applicants herein – original accused to quash and set aside the impugned complaint being Criminal Case No.2648 of 2006 pending in the Court of learned Chief Judicial Magistrate, Vadodara filed by respondent No.2 herein – original complainant for the offence punishable u/s.138 of the Negotiable Instruments Act,1881.
3. Mr.R.C.Jani, learned advocate appearing on behalf of the respective applicants herein – original accused has submitted that as the applicants have already made payment of cheques amount within a period of two days after institution of the impugned complaints, therefore, it is requested to quash and set aside the impugned complaints. It is further submitted that at the relevant time original complainant did not agree to withdraw the complaints as he wanted to settle other disputes also between them. Therefore, it is submitted that when the payment under the cheques in question have already been made within a period of two days after institution of the impugned complaints, it is requested to quash and set aside the impugned complaints in exercise of powers under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure.
Mr.R.C.Jani, learned advocate appearing on behalf of the respective applicants has relied upon the decision of the Hon'ble Supreme Court rendered in the case of Vikas Jalan V/s. M/s.Shreya Pet Private Limited dated 07/03/2011 in Criminal Appeal No.670 of 2011 reported in 2011(2) NIJ 251 and it is submitted that even after the conviction, the Hon'ble Supreme Court has permitted the complainant to withdraw the complaint, which was filed for the offence punishable u/s.138 of the Negotiable Instruments Act,1881.
4. On the other hand, Mr.L.B.Dabhi, learned Additional Public Prosecutor appearing on behalf of the respondent-State has relied upon the decision of the Hon'ble Supreme Court in the case of Rajneesh Aggarwal V/s. Amit J. Bhalla reported in (2001)1 SCC 631 and he has submitted that as held by Hon'ble Supreme Court on the aforesaid ground i.e. on making payment of cheque amount subsequently after institution of the complaint, the impugned complaints/criminal proceedings cannot be quashed and set aside.
5. Heard learned advocates appearing on behalf of the respective parties. As stated hereinabove, the applicants herein – original accused have prayed to quash and set aside the complaints/criminal proceedings filed by respondent No.2 herein – original complainant against them for the offence punishable u/s.138 of the Negotiable Instruments Act solely on the ground that the cheques amount have been paid to the original complainant within a period of two days after institution of the impugned complaints/criminal proceedings. No other submissions have been made. Therefore, short question which is posed for consideration of this Court is as to Whether on making payment of cheque amount subsequent to filing of the criminal complaint for the offence punishable u/s.138 of the Negotiable Instruments Act, the criminal proceedings can be continued or not. Controversy in question is squarely covered by the decision of the Hon'ble Supreme Court rendered in the case of Rajneesh Aggarwal (Supra), in Para-7 the Hon'ble Supreme Court has observed as under:
“7. So far as the question of deposit of the money during the pendency of these appeals is concerned, we may state that in course of hearing the parties wanted to settle the matter in Court and it is in that connection, to prove the bona fides, the respondent deposited the amount covered under all the three cheques in the Court, but the complainant's counsel insisted that if there is going to be a settlement, then all the pending cases between the parties should be settled, which was, however, not agreed to by the respondent and, therefore, the matter could not be settled. So far as the criminal complaint is concerned, once the offence is committed, any payment made subsequent thereto will not absolve the accused of the liability of criminal offence, though in the matter of awarding of sentence, it may have some effect on the court trying the offence. But by no stretch of imagination, a criminal proceeding could be quashed on account of deposit of money in the court or that an order of quashing of criminal proceeding, which is otherwise unsustainable in law, could be sustained because of the deposit of money in this Court. In this view of the matter, the so-called deposit of money by the respondent in this Court is of no consequence.”
Under the circumstances, prayer of the respective applicants to quash and set aside the impugned complaints/ criminal proceedings for the offence punishable u/s.138 of the Negotiable Instruments Act on the ground that entire cheques amount have been paid within a period of two days after institution of the impugned complaints, cannot be accepted.
6. So far as reliance placed upon by Mr.R.C.Jani, learned advocate appearing on behalf of the applicants on the decision of the Hon'ble Supreme Court in the case of Vikas Jalal (supra) is concerned, considering the said decision, the same shall not be applicable to the facts of the present case. Considering the facts of the case on hand, the said decision would not be of any assistance to the applicants herein. In the case before Hon'ble Supreme Court, it appears that the order has been passed by consent and the original complainant made a statement that they would not pursue the complaint u/s.138 of the Negotiable Instruments Act if they are permitted to withdraw the amount of compensation of Rs.10 Lacs, which has been deposited by the original accused. In the present case, nothing is on record that the complainant has agreed not to pursue the complaint u/s.138 of the Negotiable Instruments Act. On the contrary, it appears from the correspondence that the complainant did not agree for withdrawal of the complaints in view of some other disputes pending between them. Under the circumstances, the decision relied upon by Mr.R.C.Jani, learned advocate appearing on behalf of the applicants herein would not be of any assistance to the applicants herein-original accused.
7. In view of the above and for the reasons stated hereinabove, both these petitions fail and the same deserve to be dismissed and are accordingly dismissed. Rule is discharged in each of the petitions. Ad-interim relief granted earlier, if any, stands vacated forthwith in each of the petitions.
[M.R.SHAH,J] *dipti