9911796707
TMI Blog2003 (4) TMI 609X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent No. 2 filed a complaint by alleging that the petitioner issued following cheques to him and when they were presented for encashment, were dishonoured. 1. Cheque No. 58534, dated 15.3.1998 for Rs. 17,005/- 2. Cheque No. 58535, dated 15.4.1998 for Rs. 17,005/-. 3. Cheque No. 58536, dated 15.5.1998 for Rs. 17,005/-. 4. Cheque No. 58537, dated 15.6.1998 for Rs. 17,005/-. 5. Cheque No. 58538, dated 15.7.1998 for Rs. 17,005/-. The respondent No. 2 complained, that by dishonouring of the cheques the petitioner committed the offence punishable under Section 138 of the Act. The learned Magistrate took cognizance of the said complaint and by the impugned order issued the process against the petitioner and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the bank accounts and sealing of Office, a petition was moved before this Court, which was initially heard by the Single Bench and it was referred to the Division Bench consisting V.P. Tipnis and Palkar, JJ who quashed the seizing of the car, sealing of office and freezing of bank accounts of the petitioner. It was challenged in the Supreme court and the Supreme court granted stay to the judgment and order of the Division Bench as quoted above. Shri Pradhan submitted that the accounts of the petitioner are still frozen. 5. Shri Pradhan submitted that the petitioner did not commit offence punishable under Section 138 of the Act, because, the petitioner did not commit any act which is falling under the purview of Section 138 of the Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithout prejudice to any other provisions 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prosecution, was answered to be a dispute of civil nature by a competent criminal Court and, therefore, the respondent No. 2 should not have filed the present complaint and the learned Magistrate should not have taken cognizance thereof. 10. Shri Pradhan submitted that the complainant should have come to the Court with clean hands and should have narrated all these facts at the time of presenting the complaint. He further submitted that the order of issuing process against the petitioner has been passed on 24/3/1999 and this petition has come for final hearing after significant number of years and therefore, this Court be pleased to quash that prosecution without asking the petitioner to go to the said Court and make appropriate submissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osecution, which is the result of the cognizance taken of the complaint results in hardship, agony and expenditure to the indicated person. He is required to appear before the Court and for that in normal and in major cases, he has to engage a lawyer which would make him to spend a significant amount of money. For appearing before the Court he has to withdraw himself from his normal occupation, which happens to be a source of his livelihood. Therefore, the complainant who does not place all the material facts before the Court and seeks an order from the Court, the cognizance of his complaint has to suffer a failure, so far as his cause is concerned. One who does not come with clean hands has to suffer. 13. So far as present case is conce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s petition. 14. When the Court of competent jurisdiction directs a person to return the cheques to drawer, he has to obey the said order, if that was not challenged by him in higher forums. In such case or cases he does not have any right to present those cheques for encashment. If he presents such cheques in violation of such order, then he cannot take advantage of dishonouring of such cheques for filing a complaint against such drawer in a criminal Court. Exactly the same situation has arisen so for as the present case is concerned. There is no point in allowing the petitioner to go to said Court and to make a prayer to that Court for recalling the said order because, nearly 5 years have elapsed. Therefore, this Court passes the order ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
