=== EAST WEST MARINE ENGINEERING WORKS, THRO' MARUVADA PADMAJA....Applicant(s) Versus STATE OF GUJARAT & 1....Respondent(s) ============================================= Appearance:
MR AR GUPTA, ADVOCATE for the Applicant(s) No. 1 MR SUREN M SHAH, ADVOCATE for the Respondent(s) No. 2 PUBLIC PROSECUTOR for the Respondent(s) No. 1 ============================================= CORAM: HONOURABLE MR.JUSTICE M.R. SHAH Date : 16/01/2012 ORAL ORDER Present Criminal Miscellaneous Application under Section 482 of the Code of Criminal Procedure has been preferred by the petitioner hereinoriginal accused to quash and set aside the Criminal Complaint being No.553 of 2009 pending in the Court of learned Metropolitan Magistrate (Negotiable Instrument) Court No.8, Ahmedabad mainly on the ground that as the cheque in question was returned by the concerned Bank on the ground that "signature differ" and therefore, when the cheque has been returned with an endorsement "signature differ", the same will not fall under Section 138 of the Negotiable Instruments Act.
In support of above submission, learned advocate for the petitioner has heavily relied upon the decision of the learned Single Judge of this Court dated 27.8.2010 passed in Special Criminal Application Nos. 896 of 2010 to 935 of 2010 and another decision of the learned Single Judge dated 19.4.2010 passed in Special Criminal Application No.2118 of 2009 and other allied matters.
R/CR.MA/4091/2010 ORDER However, in view of the decision of the Hon'ble Supreme Court in the case of Rangappa vs. Sri Mohan reported in (2010) 11 SCC 441 and in the case of Goaplast P Ltd vs. Chico Ursula D souza reported in (2003) 3 SCC 232 and even otherwise considering the object and purpose of Section 138 of the N.I. Act, this Court is not in agreement with the view taken by the learned Single Judge in its judgment and order dated 27.8.2010 passed in Special Criminal Application Nos. 896 of 2010 to 935 of 2010 and another decision of the learned Single Judge dated 19.4.2010 passed in Special Criminal Application No.2118 of 2009 and other allied matters. Under the circumstances, the matter is referred to Division Bench and following question is referred to Division Bench for its kind consideration.
"Whether in case when the cheque is returned by the concerned bank on the ground of "signature differ" and in case despite the statutory notice under Section 138 of the N.I. Act, there was no reply to the said notice and even thereafter, on receipt of the summons of the complaint, no effort has been made by the accused to issue fresh cheque with correct signature to show their bonafide, the complaint is liable to be dismissed or can it be said that the offence punishable under Section 138 of the N.I. Act is not made out ?
Registry is directed to prepare the second set and place the matter before Hon'ble the Chief Justice for obtaining appropriate orders for placing the matter before the Division Bench to consider the aforesaid question.
(M.R.SHAH, J.) Kaushik Page 2 of 2