Rameshchandra Rajnikant Kothari Vs. Gunvantlal Shivlal Shah and anr. - Court Judgment

Excerpt:
- - the respondent has produced along with his complaint the cheque as well as the memo issued by the bank of baroda, surendranagar, and that the learned magistrate was pleased to issue process against the present petitioner and therefore, the petitioner has come before this court. but no reply to the said notice was given and the conduct of the petitioner clearly shows that the petitioner is not an honest person.s.d. pandit, j.rule. 1. heard mr. j. d. ajmera for the petitioner and mr. k. d. vasavada for respondent no. 1 and mr. y. f. mehta learned a.p.p. on behalf of respondent no. 2 at length on the merits. hence, i proceed to dispose of the petitioner finally at the stage of admission. 2. original accused in criminal case no. 7290 of 1995, on the file of the chief judicial magistrate, surendranagar, has filed the present petition for quashing the said criminal proceedings. 3. the respondent, gunvantlal shivlal shah, has filed the said private criminal case under section 138 of the negotiable instruments act, 1881, alleging that a cheque bearing no. 47787 drawn on bank of baroda, surendranagar branch, given by the present petitioner for an amount of rs. 30,000 has been dishonoured by the bank and, thereafter, he had issued notice dated september 29, 1995, calling upon the present petitioner to pay the amount, but no reply to the said notice was given. the respondent has produced along with his complaint the cheque as well as the memo issued by the bank of baroda, surendranagar, and that the learned magistrate was pleased to issue process against the present petitioner and therefore, the petitioner has come before this court. 4. the offence alleged against the present petitioner is said to have been committed by him under the provisions of section 138 of the negotiable instruments act, 1881. therefore, it is necessary to consider the said provision which run as under : '138. dishonour of cheques for insufficiency, etc., of funds in the account. - where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both : provided that nothing contained in this section shall apply unless - (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice. explanation - for the purpose of this section, 'debt or other liability' means a legally enforceable debt or other liability.' 5. if the above provisions of section 138 of the negotiable instruments act. 1881, are considered, then it would be quite clear that if the cheque is dishonoured either because the amount of money standing to the credit of that account is insufficient to honour the cheque or the cheque exceeds the amount arranged to be paid such person shall be deemed to have committed an offence. the bank memo produced by the complainant along with the complaint shows that the cheque was not honoured as there was alteration in the date on the said cheque. the copy of the cheque shows that the initial date was may 4, 1994, and it has been altered to may 4, 1995, by making alteration in the last figure of 4 in the date. therefore, it is quite obvious that the cheque issued by the present petitioner was not dishonoured on account of insufficient funds in the account of the petitioner. consequently the dishonour of the cheque by the bank would not amount to an offence within the purview of section 138 of the negotiable instruments act, 1881. 6. the learned advocate for respondent no. 1 vehemently urged before me that respondent no. 1 had issued a notice to the present petitioner before approaching this court and after the bank had dishonoured the cheque. but no reply to the said notice was given and the conduct of the petitioner clearly shows that the petitioner is not an honest person. but in this proceeding i have to only see as to whether taking cognizance by the learned magistrate for the offence under section 138 of the negotiable instruments act, 1881, was justified in view of the facts and material which were before the learned magistrate. i am not going to consider as to whether the petitioner was owing any amount to the respondent no. 1 or not. i am also not to consider as to whether the claim of the respondent for getting the amount of the cheque is valid or not. i am only considering the question as to whether the recourse taken by the respondent no. 1 to criminal prosecution by taking the aid of section 138 of the negotiable instruments act, 1881, is justified or not. it is settled law that a party cannot have recourse to criminal prosecution for a civil dispute between the parties. it is also settled law that if from the averments made in the complaint and the materials produced by the complainant, no criminal offence is disclosed, then issuing of process by the trial court on the strength of said complaint and material before him would amount to making misuse of the process of law and such criminal proceedings and the order of issuing process deserves to be quashed and set aside. i, therefore, hold that the present application will have to be allowed. in the circumstances the proceedings of the criminal case no. 7290 of 1995, on the file of the chief judicial magistrate, surendranagar, along with the order of issuing process against the applicant passed by the learned chief judicial magistrate, surendranagar, are hereby quashed. rule made absolute.