JUDGMENT
B.J. Shethna, J.
1. There is a chequered history in the matter between the parties. The private respondents-complainants are dragged to this Court time and again including the trial court by way of different type of applications. The intention behind it is only to delay the proceedings which are pending before the trial court as far as possible.
2. On earlier occasion also, criminal complaint No. 282/97 was filed against the present petitioners by the respondent complainant. There is a very intelligent manner, the complainant was duped by the accused by entering into compromise. Thereupon, the complainant withdrew the complaint in terms of compromise and accordingly, the same was dismissed as withdrawn by the trial court on 20.9.1997. As per the compromise, five cheques of Rs. 11 Lakhs each were drawn in favour of the respondent complainant. When the said cheques were deposited by the complainant in the bank, the same bounced back on account of insufficient fund in the back’s account of the accused. After giving due notice, the respondent complainant was obliged to file another complaint before the court of Judicial Magistrate No.2 (South), Udaipur against the present accused for the offence Under Section 138 of the Negotiable Instruments Act (for short ‘the Act’) which was registered as criminal complaint No. 387/1998.
3. Earlier the charge was framed against the accused persons Under Section 138 of the Act which was challenged by the petitioner before this Court by way of two separate petitions. The accused petitioner No. 1 M/s. Peacock Industries filed S:B. Cr. Misc. Petition No. 451/1999 challenging the order dated 24.3.1999 passed by the learned Magistrate and against the order dated 10.6.1999 passed by the learned Additional District Judge No.3, Udaipur dismissing the revision filed by the accused against the order of framing charge passed by the learned Magistrate. The said petition was dismissed by the learned Single Judge of this Court on 4.7.2000 by a detailed reasoned order. In terms of that order, another criminal petition No. 438/1999 filed by the rest of the accused petitioners were also dismissed on 4.7.2000 by the same learned Single Judge.
4. It may be stated that against the aforesaid orders passed by the learned Single Judge dismissing the petitions against the order passed by the learned Magistrate framing charge Under Section 138 of the Act, the petitioners had not carried the matter further to the Hon’ble Supreme Court. But surprisingly, they had later on filed another application dated 5.2.2001 before the learned Magistrate to dismiss the complaint filed by the complainant Under Section 138 of the Act on the ground that the complainant failed deposit the cheques within the prescribed time limit. The said application filed by the accused to dismiss the complaint on the aforesaid ground was strongly opposed by the complainant before the learned Magistrate. The learned Magistrate dismissed the said application by his impugned order dated 22.2.2001. The same is challenged by all the accused petitioners this time by way of this joint misc. petition Under Section 482 Cr. P.C.
5. It is pertinent to note that the accused petitioners have deliberately not mentioned about dismissal of their earlier petitions filed by the learned Single Judge of this Court against the order passed by the learned Magistrate framing charge Under Section138of the Act, therefore, on the basis of averments made in the petition, on 13.2.2001, the learned Single Judge ordered to issue notice to the respondents and meanwhile stayed the further proceedings before the trial court in criminal case No. 387/1998.
6. In response to the said notice, learned Counsel Mr. Say an Singh for the private respondents had shown the earlier orders of rejection passed by the learned Single Judge of this Court dismissing the misc. petition as well as revision petition filed by the accused petitioners against the order passed by the learned Magistrate framing charge Under Section 138 of the Act.
7. In my considered opinion, this fact itself was sufficient to dismiss this petition because the accused persons were required to disclose this fact in this petition that on earlier occasion, they had come against the order passed by the learned Magistrate framing charge Under Section 138 of the Act and those petitions were dismissed. However, learned Counsel Mr. Mathur submitted that it was not necessary for them to mention the aforesaid fact because they have filed this petition against the impugned order dated 22.2.2001 passed by the learned Magistrate dismissing their application to dismiss the complaint on the ground that cheques were not submitted to the bank on the agreed dates.
8. This is no ground for not mentioning the most important and material fact about dismissal of their petitions against the order passed by the learned Magistrate framing charge Under Section 138 of the Act.
9. In my considered opinion, the petitioners have not come before this Court with clean hands. The modes operandi of the petitioners is very clear right from the beginning. On first occassion they gave the cheques to the complainant running into lakhs of rupees which were bounced. When the complaint was filed against them before the competent criminal court, they duped the complainant by way bf compromise and got rid of that first complaint No. 282/1997 filed against them. Once again 5 different cheques issued on different dates of Rs. 11 lakhs each were also not honoured, therefore, the complainant was obliged to file fresh criminal complaint against them Under Section 138 of the Act. The charge was framed after hearing them by the competent criminal court. Surprisingly, they challenged the same by way of two petitions. When both the petitions were dismissed by the learned Single Judge in 2000, they made an application Under Sections 251, 254 and 258 Cr. P.C. before the trial court on flimsy grounds mentioned in that application. When it was rejected by the learned Magistrate on 22.2.2001, the same was challenged before this Court by way of this petition without mentioning the fact of dismissal of their petitions against the order passed by the learned Magistrate framing charge Under Section 138 of the Act. Thus, the intention of the accused is very clear right from the beginning to cheat the complainant.
10. These facts are sufficient to dismiss this petition without going into the merits of the case.
11. Even on merits, the petitioners have no case. Once this Court has come to the conclusion that the learned Magistrate has rightly framed charge tinder Section 138 of the Act against the accused, then an indirect attempt is made to overcome the effect of that order by the accused by filing such application before the trial court to dismiss the complaint against them. The learned Magistrate has clearly found in para 6 of his order that,
tgka rd eqyfteku ds vf/koDrk dk rdZ gS fd pSadksa ij vafdr frfFk vfHkfu/kkZfjr ugha gksdj fnukad 20-9-1997 ftl fnu pSd eqyfteku us tkjh fd;s] og gSA rks bl lanHkZ esa U;k;ky; dk er gS fd fnukad 20-9-1997 dh vknsfkdk dk voyksdu djus ij ;g izrhr gksrk gS fd eqyfteku us ifjoknh dks vfxze pSd fnukad 1-11-1997] fnukad 1-12-1997] fnukad 1-2-1998] fnukad 1-3-1998] o fnukad 1-4-1998 ds fn;s FksA
12. While dismissing the application filed by the accused, the trial court has relied upon the judgment of Kerala High Court reported in 1991 Cr. L.J. 3253.
13. In case of Anil Kumar Sawhney v. Gulshan Rai reported in 1993 Cr. L.R. (SC) 739, the Hon’ble Supreme Court has held that, “a post-dated cheque remains a bill of exchange till the date written on it. With effect from the date shown on the face of the said cheque it becomes a “cheque” under the Act and the provisions of Section 138(a) would squarely be attracted.” The Hon’ble Supreme Court has further held that, “If the object of brininging Section 138 of the Act on the statute has to be fulfilled then the only interpretation which can be given to Clause (a) of proviso to Section 138 of the Act is that a post-dated cheque shall be deemed to have been drawn on the date if bears.
14. In view of the above. I am of the considered opinion that on merits also, the petitioners have no case as the learned Magistrate has assigned cogent reasons for rejecting the application filed by the accused to dismiss the plaint filed by the complainant against them for the offence Under Section 138 of the Act.
15. Before parting, I may state that I was required to make certain observations on the merits of the case because learned Counsel Mr. Mathur argued the matter and invited the order on merits. However, I make it clear that whatever observations are made in this matter are on the basis of the material placed before me at this stage. It goes without saying that the Trial Court has to decide the case on the evidence being led before it.
16. With these observations, this petition is dismissed.
17. Stay petition is also dismissed.
