Heard Sri S.M.A. Abdy, learned counsel for the applicants as well as learned A.G.A. appearing for the State-respondents and have perused the record. In view of the nature of the order, which is being passed, this petition is disposed of without issuing notice to the private respondent no. 2.
The case of the applicants is that the firm M/s Prabha Construction, of which the applicants are partners, had taken a loan of Rs. 5,00,000/- from the respondent no. 2, who, according to the petitioners, was the income tax counsel of M/s Prabha Construction. A cheque for the security was issued by the petitioner no. 2. The said cheque, which was kept as a security with the respondent no. 2, was presented by the respondent no. 2 and since the same bounced because of insufficient fund, the present proceedings under Section 138 Negotiable Instruments Act, 1881 has been initiated, which is registered as Case No. 950 of 2007 and later on numbered as Criminal Case No. 3490 of 2009.
The submission of the learned counsel for the applicants is that after the summoning order was passed, the applicants filed an application on 19.8.2008 under Section 258 Cr.P.C. for stopping the proceedings against the applicants. It is stated that though the said application was filed more than 15 months back, the same has not yet been decided and the proceedings in the case are going on. Learned counsel for the applicants states that since the cheque issued by the applicants was as a security and not in discharge of liability or debt, the provisions of 138 of the Negotiable Instruments Act would not be attracted. In support of his submission, he relied on a judgement of Hon'ble Supreme Court rendered in the case of Sudhir Kumar Bhalla Vs. Jagdish Chand, (2008) 7 SCC 137.
The present petition has been filed with the prayer that the entire proceedings of Criminal Case No. 3490 of 2009 be quashed.
Considering the facts and circumstances of this case and keeping in view that the applicants have already filed an application on 19.8.2008 before the Trial Court with the same prayer, in my view, this petition deserves to be disposed of and is accordingly disposed of with the direction that the Trial Court shall decide the application dated 19.8.2008 filed under Section 258 Cr.P.C. at the earliest before proceeding further in the matter.
It is further provided that till the application under Section 258 Cr.P.C. filed on 19.8.2008 is decided, no coercive action shall be taken against the applicants.
Order Date :- 27.1.2010 abHiShEk