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CR.MA/605120/2007 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 6051 of 2007
=========================================================
AMRUTBHAI
RAMBHAI PATEL & 1 - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance
:
MR
S.R. Divetia for Applicant(s) : 1 - 2.
Ms Mini Nair, Addl.PUBLIC
PROSECUTOR for Respondent(s) : 1,
RULE NOT RECD BACK for
Respondent(s) : 2,
MR VIVEK B GUPTA for Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MS. JUSTICE R.M.DOSHIT
Date
: 26/03/2009
ORAL
ORDER
1. This
application is made by the accused under Section 482 of the Code
of Criminal Procedure, 1973 for quashing the proceedings in Criminal
Inquiry Case No. 8 of 2006 pending before the Learned Judicial
Magistrate First Class, Ahmedabad.
2. Respondent
No.2, Vinodbhai Somabhai Patel has filed the above referred criminal
complaint before the Learned Judicial Magistrate First Class,
Ahmedabad against the present applicant in respect of commission of
offences under sections 379, 380, 406, 420, 467, 468, 471, 120-B and
114 of Indian Penal Code. It is the case of the complainant that
the complainant had purchased a residential flat from the accused.
He had made part payment in the sum of Rs. 5,90,000/-. The
remaining amount had not been paid as the accused had not completed
certain extra work and not parted with the title of the flat.
Nevertheless, the accused being Chairman/Secretary of the Society
used to visit the complainant. During one of such visits, he had
stolen certain blank cheques, had forged signature of the
complainant, written the details and presented to the Bank.
3. Pending
investigation of the said complaint, the accused has filed this
application for quashing of the complaint. Learned Advocate, Mr
Divetia has appeared for the complainant. He has submitted that the
cheques in question were issued by the complainant against the sale
price of the flat. As the cheques, on presentation in the bank
were not honoured for want of sufficient funds, the accused has
filed complaint against the complainant under section 138 of the
Negotiable Instruments Act in Satellite police station. The same
is registered as M. Case No.1 of 2006. The aforesaid complaint No.8
of 2006 has been filed by the complainant in retaliation to the
complaint filed by the accused. The complaint filed in retaliation
of the complaint lodged by the accused amounts to abuse of process
of law. It requires to be quashed and set aside. He has relied
upon the judgment of the Hon’ble Supreme Court in the matter of
Mahindra & Mahindra Financial Services Limited & Anr.
v. Rajiv Dubey (2009) 1 SCC (Cri.) 603). He has submitted
that in the similar set of facts, the Hon’ble Supreme Court quashed
the criminal proceeding. Be it noted that in the matter before
the Hon’ble Supreme Court, the complainant against whom offence under
section 138 of the Negotiable Instruments Act had been registered did
not dispute that the cheques in question were issued by him. In the
present case, the complainant has specifically alleged that the
cheques were not issued by him. He has also disputed the writing and
signature on the cheques.
4. In
my opinion, it is too early a stage to quash the complaint No.8 of
2006. The complaint does call for investigation.
5. For
the aforesaid reasons, this application is rejected. Rules is
discharged. Interim Relief is vacated.
[Ms.
R.M. DOSHIT, J.]
msp
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