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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO. 1830 OF 2001
WITH
CRIMINAL APPLICATION NO. 1831 OF 2001
M/s.Viral Filaments Ltd. .... Applicant
(Orig.Accused No.2)
V/s.
1) State of Maharashtra
2) Arvind Waman Degvekar .... Respondents
.....
Mr.S.V.Marwadi,Advocate, for the applicant.
Mr.A.S.Shitole, APP for State.
None present for the respondent no.2.
.....
CORAM : V.R.KIN GAONKAR, J.
DATE : 22ND SEPTEMBER, 2009.
ORAL ORDER :
1.Mrs.Sharmila Kaushik states that she has
given consent to another lawyer Mr.Michael
D Souza and hence she may be discharged.
Mrs.Sharmila Kaushik stands discharged as
Mr.Michael D Souza has filed Vakalatnama.
2.These are applications filed under section
482 of the Criminal Procedure Code for
quashing of the private complaint cases
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instituted by the respondent no.2 for offence
u/s.138 of the Negotiable Instrument Act (for
short the Act ).
3.It is not necessary to elaborately set out
the case put forth by the respondent no.2-
(complainant) in both the complaints.
4.Suffice it to say that according to the
respondent ig no.2, certain amount was placed
with the applicant (original accused no.2).
The applicant assured to repay that amount to
the respondent no.2 alongwith interest that
would fall due on the date of payment. The
applicant delivered a cheque which was issued
by the original accused no.1, who is not a
party to the application, alongwith a
covering letter issued by the original
accused no.3, who had signed the cheque as an
authorized signatory. The cheuqes were
dishonoured when presented to the Bank. The
respondent no.2 issued demand notice to the
applicant and other accused persons. The
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demand notice was not complied with.
Consequently, the criminal cases were
instituted vide C.C.No. S-698/1998 and
C.C.No. 697/S of 1998.
5.The applicant would submit that the
prosecution cannot withstand against it due
to the fact that the cheques were never drawn
on account of the applicant nor the applicant
can be regarded as drawer of the said
cheques. The applicant submits that the
process issued against the applicant-Company
is bad in law. The applicant further submits
that the applicant had no domain over the
bank account of the original accused nos. 1 &
3. The applicant urged to quash the criminal
cases for the reason that no offence is made
out even if the averments in the complaints
are taken as they stand.
6.Heard learned counsel for the applicant and
learned APP. None appeared for respondent no.
2.
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7.On going through the averments made in the
complaints, it is manifest that the
transactions were allegedly between the
respondent no.2 and the applicant, yet the
cheques in question were not issued on the
account of the applicant nor the applicant or
any representative of the applicant was the
signatory of
ig the cheques. The applicant
merely handed over the cheuqes signed by the
original accused no.3 as authorized signatory
of the original accused no.1, namely M/s.
Sinca Fibers, the proprietory concern of
which Shri Balaram is shown as a Proprietor.
The averments made in the complaints show
that the description of the accused no.1 is
given as one Shri Balaram (Original Accused
No.1), who was the Sole Proprietor of
M/s.Sinca Fibres, a proprietory concern.
8.What can be gathered from the averments in
the complaints, as such, is that to discharge
the financial liability of the applicants, a
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third party i.e. the original accused no.2
issued the cheques in question. The
respondent no.2 may avail civil remedy for
recovery of the amount due. Still, however,
for the purpose of Section 138 of the Act,
criminal action could be taken only against
the drawer of the cheque. The sub-clause (c)
of the proviso appended to section 138 of the
Act would also make it amply clear that the
offence would be completed when the drawer of
the cheque fails to make the payment of the
amount of money to the payee or to the holder
in due course, within 15 days of the receipt
of the demand notice. Obviously, unless it
is shown that the applicant could be treated
as drawer of the cheuqe in the eye of law, no
criminal action can be instituted against
him. It follows that the averments in the
complaint do not make out any case which
would show prima facie, the necessary
ingredients of the offence punishable u/s.138
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of the Act. In this view of the matter, the
process issued against the applicant is quite
unsustainable and they may amount to abuse of
the process of the court.
9.In the result, the applications are allowed.
The private complaint cases bearing nos.
698/S of 1998 & 697/S of 1998 to the extent
of the applicant herein are quashed and the
applicant stands discharged.
(V.R.KIN GAONKAR, J.)
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