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TMI Blog2020 (7) TMI 164X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in the case of SUNIL KUMAR VERSUS ESCORTS YAMAHA MOTORS LTD. AND ORS., [ 1999 (10) TMI 749 - SUPREME COURT ] , on amongst other, has held that a complaint and FIR after filing a complaint case under Section 138 N.I. Act, will amount to be an abuse of the process of the court. The complaint has been filed by the complainant by way of his defence to the proceeding under Section 138 N.I. Act, in which he is an accused. Further, the defence of the petitioner, which is the subject matter of the complaint, has been tested by two courts, i.e. Magistrate and the Sessions Judge and both of them rejected his version. The court below thus, has wrongly taken cognizance of offence under Sections 406/34 of the Indian Penal Code, and has issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was also granted and an undertaking was given by the petitioner that he will return the cheques, which were given to him by way of security deposit. It has been further mentioned in Para-8 that a notice was served upon the complainant, then only he came to know that the aforesaid two cheques, which were given to the petitioner as security deposit, which were supposed to be returned to the complainant, were presented before the Bank and the same got dishonored. It is the case of the complainant that he made inquiry and then he could come to know that with a dishonest intention, the cheques were presented before the Bank, thus the complainant felt cheated. On this background, the complaint petition was filed. The Court, thereafter, recorded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 38 N.I. Act and both the courts disbelieved the same, thus this instant order taking cognizance should be quashed. 7. Mr. Rajesh Kumar, learned counsel for O.P. No. 2 submits that admittedly, there was a business relationship between the parties. Two cheques were given to the accused persons, but they did not return the same even after receipt of money in cash. Thus, they have committed criminal breach of trust and have cheated the complainant. 8. I have heard learned counsel for the parties and have gone through the entire file. I am not repeating the fact of this case, which has been mentioned in the complaint petition as the same has been narrated in brief hereinabove. The fact, which I would like to mention and record, is the stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be tenable in the eyes of law. 9. Further, I find that it is an admitted case that after receipt of the notice under Section 138 N.I. Act and after a proceeding under Section 138 N.I. Act, which had been filed against the complainant, the complainant chose to file this complaint, which is the subject matter of this case. The Hon'ble Supreme Court in the case of Sunil Kumar- versus- Escorts Yamaha Motors Ltd. Others, reported in (1999) 8 SCC 468 , on amongst other, has held that a complaint and FIR after filing a complaint case under Section 138 N.I. Act, will amount to be an abuse of the process of the court. Similarly, the Hon'ble Supreme Court in the case of Eicher Tractor Ltd. (supra) more or less on identical facts has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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