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TMI Blog2019 (6) TMI 448X X X X Extracts X X X X X X X X Extracts X X X X ..... The defence of respondent No.1 is that there is failure to establish Prima facie that notice was issued by the advocate for the complainant therein and was received by the accused - The fact remains, there was no amount in the account of the complainant and the cheques were dishonoured for insufficient funds. The proceedings under Section 138 were initiated by the accused. The petitioners have relied upon the invoices in support of their claims. Civil proceedings are also pending in the respective Court. Several accused are impleaded in this proceeding. The allegations against them are vague. It would be an abuse of Process of Law to continue the prosecution against the petitioners and hence the proceedings are required to be quashed and set aside - Petition allowed. - CRIMINAL WRIT PETITION NO. 763 OF 2001 WITH CRIMINAL WRIT PETITION NO. 764 OF 2001, WITH CRIMINAL WRIT PETITION NO. 836 OF 2001, 764 OF 2001, 836 OF 2001 - - - Dated:- 7-6-2019 - PRAKASH D. NAIK, J. Mr. R.R. Sharma for Petitioners. Mr. P.H. Gaikwad, APP for State. JUDGMENT :- 1. The petitioners have invoked the writ jurisdiction of this Court under Article 227 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rial Estate, Mogra Lane, Andheri (E) Mumbai 400 069. The complainant used to manage, conduct and operate business affairs of his proprietary concern namely Perfect Trading from the said office. e) Accused No.4 and 5 were employees of Accused No.6 and Accused No.1. Some where in 3rd week of August 2000, the complainant received notice from income tax about scrutiny of books of account of M/s. Perfect Trading for assessment year 1999 2000. Since complainant was busy, he had instructed Accused No.3 to attend the department. The Accused No.3 had stated that, he would request Accused No.4 to prepare statement from the books of account of M/s. Perfect Trading for presenting the same to the income tax department. The complaint requested Accused No.4 to arrange the sent to Cheque Book in spite of bank account of Perfect Trading with Bank of India to the residence of complainant. The complainant was to leave for business tour. f) The complainant learnt that the Cheque book was not delivered by Accused No.4 at his residence. Accused No.4 gave an evasive reply to the complainant and stated that he could not locate the Cheque book of Perfect Trading. The complainant repor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of the complaint, verification statement was recorded. The Learned Metropolitan Magistrate vide Order dated 09 03 2001 issued process against the accused under Sections 403, 405, 403, 463, 464, 477A, 201, 202, 420, 425, 426, 192, 120A, 120B read with Section 34 of the IPC on the ground that there is sufficient ground to proceed against the accused. The Trial Court thereafter issued summons to the accused. 5. Learned advocate for the petitioners submitted that, the Learned Magistrate has mechanically issued process against the accused. The complaint is false and frivolous. The complaint has been filed as a counter blast for denying the liabilities. The cheques issued by the complainant for an amount of ₹ 92,40,000/ and ₹ 71,17,132.90/ were dishonoured. The said cheques were issued in discharge of liability. The offences alleged in the complaint are not made out. Continuation of the proceeding initiated by the respondent No.1 would amount of abuse of Process of Law. In exercise of jurisdiction under Article 227 of the Constitution of India and inherent power of this court under Section 482 of Code of Criminal Procedure the proceedings be caused. 6. L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the goods delivered and received by the complainant. The amount of ₹ 71,17,132.90/ was due and payable by the complainant to the petitioner and in acknowledgement of the payment, the Cheque bearing No. 094530 dated 02 09 2000 for an amount of ₹ 71,17,132.90/ in favour of Accused No.6. The said Cheque was presented with the bank and the same was dishonoured. Intimation was received on 12 09 2000. Demand notice was issued to the respondent No.1 calling upon him to make the payment. Notice was received by respondent No.1. The respondent No.1 failed to make payment. The notice was not replied. Complaint was filed in the Court of Judicial Magistrate First Class, Dahanu being Criminal Case No. 538/2000 against the respondent No.1 for offences under Section 138 of Negotiable Instrument Act. The process was issued against respondent No.1, discharge application was filed by respondent No.1 contending that the statutory notice has not been served upon him. No other ground was raised. There is no reference of theft of cheque or forgery of documents or denying the liability of the amount. The complaint was filed with malafide intention to put pressure upon the petitioners. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioners are disputed. In the reply filed by respondent No.1 in Criminal Writ Petition No. 764 of 2001 it is stated that, the petitioner company has filed Special Civil Suit No. 72 of 2001 in the Court of Civil Judge Senior division Palghar, for recovery of amount alleged to be due under the disputed cheque. Witnesses were examined. The petitioner had failed to make out the case of sale and delivery of goods alleged to have been to sold to the complainant. The goods were never ordered by respondent No.1 The depositions are full of contradictions, affidavit was filed in Civil Proceedings, there are admissions in the affidavit that the petitioners company, Electronic Industries and Magic Creations are sister concern. The petitioners had relied upon delivery challans, lorry receipts for delivery of goods in the suit proceedings. 11. The petitioner in Criminal Writ Petition No. 764 of 2001 has filed an affidavit putting on record relevant documents, such as the copy of summons, the verification statement of the complainant recorded by the Court, order issuing process passed by the Metropolitan Magistrate along with documents relied upon by complainant. 12. The respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pears to be after thought. There is no evidence of fabrication of documents. Admittedly Civil proceeding are pending before the appropriate Court and the claims of respective parties are subject matter of the said proceeding. The Cheque for an amount of ₹ 71,17,132.90/ was dishonoured. The said Cheque was also signed by the complainant. It was dishonoured on 12 09 2000. After receipt of intimation from banker, notice was issued to the complainant demanding the amount in accordance with Section 138 of Negotiable Instrument Act. According to the petitioner the said notice was not replied by the complainant. The complaint for offence under Section 138 of Negotiable Instrument Act viz., Criminal Case No. 538 of 2000 was filed by Patel Polymers Pvt. Ltd. (Accused No.6)/Petitioner No.1 in Writ Petition No. 764/2001. The respondent No.1 has apparently filed an application for discharge on 19 03 2001 before the appropriate Court which has been annexed to the petition. The defence of respondent No.1 is that there is failure to establish Prima facie that notice was issued by the advocate for the complainant therein and was received by the accused. 14 From the documents on rec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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