UMIYA PIPE PRIVATE LIMITED Vs. STATE OF GUJARAT

JUDGEMENT

(1.) PRESENT Criminal Miscellaneous Application under Section 482 of the Code of Criminal Procedure has been preferred by the petitioner -original accused to quash and set aside the impugned complaint being Criminal Case No.1731 of 2007 for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 pending in the Court of learned JMFC, Mansa.

(2.) RESPONDENT no.2 -herein original complainant through power of attorney had filed impugned criminal complaint in the Court of learned JMFC, Mansa being Criminal Case No.1731 of 2007 against the petitioner for the offence punishable under Section 138 of the N.I. Act alleging inter alia that huge amount was paid to the petitioner by way of loan and investment and even certain properties were also mortgaged by mortgage deed dated 28.2.2006 and under the said mortgage deed dated 28.2.2006 the petitioner agreed to repay the amount and under the same and towards the part payment the accused given one cheque no.831209 dated 10.8.2007 drawn on Bank of Baroda, Dariyapur Branch, Ahmedabad of Rs.3 lacs and when the said cheque was deposited, the same has been returned with an endorsement today opening balance insufficient . It is further alleged in the complaint that thereafter the petitioner were served with the statutory notice dated 6.10.2007 under Section 138 of the N.I. Act and called upon the petitioner to make the payment within 15 days and the said notice was sent by R.P.A.D as well as UPC and despite the same the cheque amount has not been paid. Therefore, it is alleged that the petitioner has committed offence under Section 138 of the N.I. Act. That the learned JMFC, Mansa by order dated 19.11.2007 has directed to be issued summons against the petitioner for the offence under Section 138 of the N.I. Act. Hence, petitioner -original accused has preferred present Criminal Miscellaneous Application under Section 482 of the Code of Criminal Procedure.

(3.) SHRI Sanjanwala, learned Senior Advocate for the petitioner has vehemently submitted that as such under the MOU dated 9.2.2006 executed between the complainant and the petitioner, by which it was agreed by the petitioner to repay the amount of Rs.21,84,00,000/ - by different post dated cheques between 4.12.2006 to 21.12.2009 and one of the post dated cheque was dated 10.8.2007 However, despite the above MOU dated 9.2.2006 the complainant lodged one FIR against the petitioner in local Crime Branch, Gandhinagar for the offences under Sections 407, 420, 427 and 504 of Indian Penal Code and Directors of the petitioner company were arrested and subsequently were released on bail. However, during the course of investigation Bank Account in question of the petitioner company was freezed by the Investigating Officer of local Crime Branch, Gandhinagar in the month of April/ May, 2006 and despite the fact that complainant was aware of freezing of the said bank account of the petitioner company being Current Account No.10497, the complainant deposited the cheque in question knowing fully well that the Bank account has not been operated and has been freezed. Therefore, it is submitted that when the Bank Account has been freezed by the investigating officer of the local Crime Branch, Gandhinagar pursuant to the FIR filed by the very complainant, the bank account is not operated by the petitioner since April/ May, 2006, it cannot be said that the petitioner has committed any offence as alleged under Section 138 of the N.I. Act. It is further submitted that at the time when the post dated cheques were given on 7.2.2006 the bank account of the petitioner company was in operation, however subsequently on the FIR filed by the complainant the said bank account has been freezed by the investigating officer, even today also the same has also continued to be freezed by the investigating officer. Therefore, it is submitted that the petitioner cannot be said to have been committed any offence under Section 138 of the N.I. Act. It is submitted that though the aforesaid was pointed out in the reply to the statutory notice, the complainant has deliberately not stated anything with respect to the same in the impugned complaint. Therefore, it is submitted that impugned complaint filed by the complainant is nothing but an abuse of process of law and Court and with mala fide intention, therefore, it is requested to exercise the powers under Section 482 of the Code of Criminal Procedure and to quash and set aside the impugned complaint.