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CR.A/29/2011 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 29 of 2011
=========================================================
CHETAN
RAMESHBHAI SHAH - Appellant(s)
Versus
STATE
OF GUJARAT & 1 - Opponent(s)
=========================================================
Appearance
:
MR
ASHISH M DAGLI for
Appellant(s) : 1,
MR HL JANI, APP for Opponent(s) : 1,
None for
Opponent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 18/01/2011
ORAL
ORDER
The
appellant – original complainant has filed this Appeal under
Section 378 of the Code of Criminal Procedure, against the Judgment
and order 5.1.2010 passed by the learned Metropolitan Magistrate,
Court No.6, Ahmedabad in Criminal Case No. 1929 of 2009.
It
is the case of appellant – complainant that the present
respondent No.2 – original accused has given the cheque No.
452152 dated 01.05.2009 for Rs.18,00,000/-, drawn on Ahmedabad
Mercantile Co-Operative Bank Ltd. (Scheduled Bank), Maninagar
Branch, Ahmedabad, in presence of the bailiff, for the purpose of
settlement of Civil Suit No. 45 of 2009, filed by the complainant
before the City Civil Court. It is alleged by the complainant that
the said cheque was deposited in United Co-Operative Bank Ltd. which
was returned on 30.5.2009 with an endorsement “today’s opening
balance insufficient”. Therefore, the complainant issued
notice to the respondent – accused throug UPC and also by
registered A.D., however, the same was not replied by the respondent
No.2, nor the amount was paid by him. Therefore, the complainant
filed complaint before the learned Metropolitan Magistrate, Court
No.6, Ahmedabad on 04.07.2009.
From
the Rojkam it appears that on the very same day verification of the
complaint was also made and summons was also issued to respondent
No.2 which was made returnable on 24.8.2009. However, thereafter, as
no parties were present and no report or application was produced on
record, vide order dated 5.1.2010, the said complaint was dismissed
for default by the learned Magistrate.
Against
the said order dated 5.1.2010, passed by the learned Magistrate,
the appellant – original complainant has preferred this
Appeal.
Heard
learned Advocate Mr. Dagli, appearing on behalf of the appellant –
complainant and learned A.P.P. Mr. Jani, appearing on behalf of
respondent – State of Gujarat.
Learned
Advocate Mr. Dagli has contended that the complaint is filed under
Section 138 of the Negotiable Instrument Act and a huge amount is
involved and on the very day of complaint, verification was also
made and summons was issued to the respondent No.2. However, as the
complainant or his advocate could not remain present before the
trial Court, the learned Magistrate has dismissed the complaint and
the case was not heard on merit. He has contended that the
complainant or his learned advocate were not aware about the last
two dates of the case, therefore, they could not remain present
before the Court. Mr. Dagli has contended that the ingredients of
Section 138 of the Act is covered, yet, the learned Magistrate has
not considered that issue. He has contended that the learned
Magistrate has not decided the mater on merit and simply dismissed
the matter for default. He, therefore, contended that the matter may
be remanded to the trial Court for hearing the same on merit in
accordance with law. Mr. Dagli has also placed reliance on a
decision of learned Single Judge of Kerala High Court, reported in
2005 CRI. L.J. 3259.
I
have gone through the papers as well as the Rojkam of the trial
Court, produced before me. I have also considered the submissions
advance by the learned Advocate. From the papers, it appears that
the complainant has filed complaint under Section 138 of the
Negotiable Instruments Act on 04.07.2009 and then the verification
was recorded on the same day. Thereafter, the learned Magistrate has
passed order for inquiry under Section 202 Cr. P.C., and then the
complainant was directed to remain present before the Court with
sufficient evidence. No doubt, in such type of matters, in past this
Court has remanded the matters for considering the issue on merits
and in accordance with law. However, in the present case in the
complaint, more particularly, in Para -2, the complainant himself
has stated that pursuant to the order passed by the City Civil Court
in Civil Suit No.45 of 2009, filed in the City Civil Court,
Ahmedabad, the complainant, along with bailiff, had gone to the
place of accused for recovering the legal dues and at that time the
accused had given a cheque of Rs.18,00,000/-. From the contents of
said para, prima facie, it is established that it is a case of
cheating and the complainant has rigght to file complaint against
the accused before the appropriate court for the offence under
Section 415 of I.P. Code, but, the complaint filed in the present
case cannot be entertained. It appears from the Appeal Memo that the
complainant – appellant has chosen short-cut way to get the
whole amount which was involved in the Civil Suit.
In
view of above observation, this appeal cannot be entertained, which
is required to be dismissed and hence it is dismissed.
(Z.K.SAIYED,
J.)
sas
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