[1.0] Present Criminal Miscellaneous Application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “CrPC”) has been preferred by the applicants herein – original accused to quash and set aside the impugned complaint being Criminal Case No.278/2010 pending in the Court of learned Metropolitan Magistrate, Court No.7, Ahmedabad filed by respondent No.2 herein – original complainant for the offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as NI Act). [2.0] Respondent No.2 herein – original complainant has filed the impugned complaint being Criminal Case No.278/2010 filed against the applicants for the offence under Section 138 of the NI Act for dishonour of cheque No.085716 dated 02.05.2009 for Rs.15 lacs. That in the said complaint the learned Magistrate has directed to issue summons against the applicants for the offence under Section 138 of the NI Act. Hence, the applicants have preferred the present Criminal Miscellaneous Application under Section 482 of the CrPC to quash and set aside the impugned complaint.
[3.0] Shri Sadhwani, learned advocate appearing on behalf of the applicants has vehemently submitted that as such the applicants have not committed any offence under Section 138 of the NI Act for dishonour of cheque No.085716. It is submitted that as such the stop payment instruction was given to the concerned Bank with respect to the aforesaid cheque at the request made by the original complainant as the said cheque was not “anywhere banking cheque” and it would have taken 15 days for clearing. It is submitted that thereafter in lieu of the aforesaid cheque, a payment of Rs.15 lacs was made to the original complainant through RTGS to ICICI Bank, Ahmedabad Branch, IFSC Code No.ICI0000024 in the account of the original complainant on 04.05.2009. It is submitted that despite the above, suppressing the above facts, the complainant deposited the cheque for which stop payment instruction was already given at the request of the original complainant and despite the fact that with respect to the aforesaid cheque, payment was already made. It is submitted that therefore at the relevant time when the cheque was deposited and returned with an endorsement “stop payment”, there was no legal debt or liability as the payment under the aforesaid cheque was already made to the complainant. Therefore, it is submitted that to continue criminal proceeding against the applicants would be unnecessary harassment to the applicants and abuse of process of law and the Court and therefore, it is requested to quash and set aside the impugned complaint.
[3.1] Though served, nobody appears on behalf of the original complainant probably considering the facts narrated herein above. Therefore, the case on behalf of the applicants that against the cheque No.085716 dated 02.05.2009 for Rs.15 lacs, payment was already made to the complainant through RTGS which was deposited in the bank account of the complainant on 04.05.2009 is not denied and/or disputed by the complainant.
[3.2] Shri L.B. Dabhi, learned Additional Public Prosecutor has requested to pass appropriate order in facts and circumstances of the case.
[4.0] Heard Shri Sadhwani, learned advocate appearing on behalf of the applicants herein – original accused and considered the allegations and averments in the complaint as well as the documents on record which are not disputed by the complainant. It appears that the impugned complaint has been filed by the original complainant for return of the cheque No.085716 dated 02.05.2009 for Rs.15 lacs which was issued in favour of the original complainant. However, it appears that the said cheque was stopped by the applicants at the request made by the complainant as the complainant submitted that the said cheque was not “anywhere banking cheque” and it will take 15 days for clearing. It appears that considering the aforesaid request, the applicants communicated to the Branch Manager, Jammu & Kashmir Bank Limited, Pune to send the aforesaid payment through RTGS to be directly credited in the account of the complainant and accordingly the Jammu & Kashmir Bank has made the payment of Rs.15 lacs against the said cheque through RTGS to ICICI Bank, Ahmedabad Branch, IFSC Code No.ICI0000024 in the account of the original complainant – Newage Industries on 04.05.2009 and the same is debited from the account of the accused. It appears that despite the above payment, the complainant has filed the impugned complaint for return of the cheque No.085716 dated 02.05.2009 suppressing the aforesaid facts and the payment of Rs.15 lacs through RTGS, which was in lieu of the cheque No.085716. From the certificate issued by the Jammu & Kashmir Bank Limited dated 09.04.2010 (page 17), the payment of Rs.15 lacs made through RTGS in the account of the original complainant has been established. Under the circumstances, to continue the criminal proceeding against the applicants for dishonour of cheque No.085716 dated 02.05.2009 despite the payment of Rs.15 lacs, which was against the aforesaid cheque, would be unnecessary harassment to the applicant and it would be abuse of process of law and the Court. Therefore, it appears to the Court that this is a fit case to exercise powers under Section 482 of the CrPC. It is required to be noted at this stage that despite the service of notice on number of occasions, the complainant has chosen to remain absent and it appears that as the payment of Rs.15 lacs was already made against the cheque in question, he has chosen to remain absent.
[5.0] In view of the above and for the reasons stated above, present Criminal Miscellaneous Application succeeds. Impugned complaint being Criminal Case No.278/2010 pending in the Court of learned Metropolitan Magistrate, Court No.7, Ahmedabad is hereby quashed and set aside. Rule is made absolute accordingly.
(M.R. Shah, J.) *menon