JUDGMENT
A.P. Lavande, J.
1. Heard Mr. Bhandarkar, the learned Counsel for the applicants, Mr. Dhote, advocate holding for Mr. A. P. Tathod, the learned Counsel for non-applicant No. 1 and Mr. Kankale, the learned A.P.P. for non-applicant No. 2.
2. By this application, the applicants seek quashing of the proceedings in Criminal Complaint Case No. 2109/2004 filed by the non-applicant No. 1 purporting to be under Section 138 read with Section 142 of the Negotiable Instruments Act. The non-applicant No. 1 filed the above case in the Court of the Judicial Magistrate, First Class, Gondia alleging commission of the offence under Section 138 of the Negotiable Instruments Act on the ground that Hiralal Sorle the husband of the applicant No. 1 and father of the applicants 2 to 4 had issued two cheques dated 10-3-2003 for Rs. 25,000/- each in his favour and when notice was issued to Hiralal Sorle claiming the amount of the said cheques, the notice was returned with an endorsement that Hiralal had expired. Notice was also issued to applicant No. 2. However, it is to be noted that it is the case of the non-applicant No. 1 himself that the cheques were issued by Hiralal only and not by applicant No. 2. The non-applicant No. 1 filed the case against the applicants who, according to him, are the legal representatives of said Hiralal. After verification, the Magistrate issued process against the present applicants. The applicants have challenged the issuance of process as well as filing of the complaint as being a complete abuse of the process of the Court. The applicants have also prayed for appropriate compensation for untenable prosecution.
3. According to Mr. Bhandarkar, the learned Counsel appearing for the applicants, the process issued by the Magistrate is without jurisdiction inasmuch as admittedly as per the non-applicant No. 1 himself the cheques which were dishonoured were issued by deceased Hiralal. Therefore, no criminal proceedings could have been filed against the applicants who are the legal representatives of deceased Hiralal. According to the learned Counsel for the applicants on a plain reading of Section 138 of the Negotiable Instruments Act it is clear that no proceedings alleging the offence under Section 138 of the Act can be filed against the legal representatives. In support of his submissions, the learned Counsel relied upon the Judgment of the Andhra Pradesh High Court in the case of Bupinder Lima and Ors. v. State of A.P. and Anr. 1999(4) All MR (Journal) 20. Mr. V. S. Dhote, the learned Counsel appearing on behalf of non-applicant No. 1 has not seriously disputed the submissions made by the learned Counsel for the applicants. Mr. Kankale, the learned A.P.P. appearing on behalf of non-applicant No. 2 leaves the matter to this Court.
4. Upon the admitted facts which are stated above it is clear that filing of the complaint by the non-applicant No. 1 as well as issuance of the process by the Magistrate is nothing but abuse of the process of the Court. On a plain reading of Section 138 of the Negotiable of Instruments Act it is clear that the proceedings under the complaint alleging offence under Section 138 of the Act cannot be filed against the legal representatives of the person who had issued the cheque. Mr. Bhandarkar is justified placing reliance upon the judgment of the Andhra Pradesh High Court in the case of Bupinder Lima and Ors. v. State of A. P. and Anr., 1999(4) All MR (Journal) 20 in which it has been observed that it is inconceivable that criminal liability can be fastened to the heirs and the legal representatives of the person who is said to have been guilty of the offence in question. The Andhra Pradesh High Court was dealing with the similar case in which legal representatives of the person who had issued the cheque were sought to be prosecuted. I am in respectful agreement with the observations made by the Andhra Pradesh High Court in the said Judgment. It appears that the Magistrate did not even care to look into the relevant provisions of the Negotiable Instruments Act before issuing the process against the applicants. Needless to mention that the issuance of the process in Criminal Case against the accused is a serious matter touching the liberty of the person against whom the offence is alleged.
5. In view of the above discussion, I hold that the Criminal Case filed by the non-applicant No. 1 and the process issued by the Magistrate against the applicants were without jurisdiction and abuse of the process of the Court. Therefore, the proceedings in Criminal Complaint Case No. 2109/2004 pending before the Judicial Magistrate, First Class, Gondia and the process issued by the Magistrate are quashed.
5A. Insofar as the claim for compensation made by the applicants is concerned, in my opinion, the applicants are absolutely justified in claiming appropriate compensation in view of the fact that the prosecution which was absolutely untenable in law was launched by non-applicant No. 1.
6. Having regard to the facts and circumstances of the case, in my opinion, this is a fit case in which the applicants deserve to be compensated. Accordingly, I award the compensation of Rs. 5000/- in favour of the applicants. The non-applicant No. 1 shall deposit the said compensation of Rs. 5000/- in the Court of the Judicial Magistrate First Class, Gondia within a period of six weeks. Upon deposit of the said amount, the Magistrate shall permit the applicants to withdraw the said amount. In the event of non deposit of the said amount within a period of six weeks, the Magistrate shall take appropriate steps to recover the same as arrears of land revenue. The application stands disposed of in the aforesaid terms.