- (1.) 1. This Misc. petition under Section 482. Criminal Procedure Code has been filed against the proceedings pending in Case No. 440/2001 for the offence under Section 138 of the Negotiable Instruments Act (for short "the Act").
(2.) The contention of the present petitioner is that the complainant-respondent No. 2 filed a complaint before the concerned Court under Section 138 of the Act stating therein that the complainant had sent a notice to the present petitioner, which was received back with the remark "N.D." and hence notice has never been served upon the petitioner and the entire proceedings should be quashed. Learned trial Court has not considered the fact that notice has never been received by the present petitioner. He has further submitted that during the course of proceedings, the petitioner has submitted a pay-order of disputed cheque amount and prayed to the trial Court that entire proceedings should be dropped but the application was dismissed by the trial Court and the revision petition has also been dismissed. It has thus been submitted that when the payment has already been made and no notice has been served on him, therefore, the proceedings are abuse of process and should be quashed.
(3.) Learned counsel for the respondent has submitted that the order taking cognizance dated 10.8.2001 and the order of the revisional Court dated 14.8.2002 are not assailed in the present petition and the submissions present petitioner are misconceived. At the same time, he has submitted that deposit of amount does not by itself absolve the accused from the liability of offence and he has relied upon the decision rendered in the case of Rajneesh Aggarwal v. Amit J.Bhalla. AIR 2001 SC 518, wherein it has been held as under: "Once the offence of dishonour of cheque is committed, any payment made subsequent thereto will not absolve the accused drawer 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 proceedings, which is otherwise unsustainable in law, could be sustained because of the deposit of money in this Court.";