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CR.MA/6366/2010 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 6366 of 2010
=========================================================
RAJENDRA
B SHARMA - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance
:
MR
SP MAJMUDAR for
Applicant(s) : 1,MR PP MAJMUDAR for Applicant(s) : 1,
MR JK SHAH,
APP for Respondent(s) : 1,
MR JB DASTOOR for Respondent(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 05/10/2010
ORAL
ORDER
The
petitioner is the original accused. He seeks quashing of complaint
Annexure-A bearing Criminal Case No.99/2010 filed by respondent no.2
herein for offence punishable under Section 138 of the Negotiable
Instruments Act.
On
the premise that petitioner had issued two cheques of Rs. 9 lakh and
Rs. 3 lakh respectively dated 19.8.2009 and 22.7.2009 which upon
presentation to the bank were returned dishonoured, complaint has
been filed. It is the case of the complainant that cheques were
issued for discharge of legal dues of the petitioner.
The
petitioner seeks quashing of the complaint on the ground that
cheques did not return for want of sufficient funds in the bank
account but on the grounds no such account and account
closed respectively. It is further pointed out that both the
cheques contained extensive overwriting and corrections on material
aspects of the date of issuance of the cheque and such corrections
are not being counter signed by the petitioner.
Counsel
for the petitioner drew my attention to copies of both cheques
produced on record. In cheque of Rs. 9 lakhs, date of 19.08.2009 is
found after overwriting the year of cheque which previously appeared
to be of year 1999. Similarly, in cheque of Rs. 3 lakhs, year 1999
has been scored out altogether and in front date 22-07-09 is
written. In this cheque there are corrections in the column of payee
also. This however, has been countersigned by the petitioner. On
this basis, it was contended that the complaint is not maintainable.
No purpose would be served in permitting full trial thereof.
On
the other hand, counsel for respondent no.2 vehemently contended
that the disputes raised by the petitioner are factual disputes and
are matter of evidence. At this stage, complaint therefore, should
not be quashed. He contended that complainant had supplied materials
and goods to the petitioner for which cheques were issued. These
cheques were therefore, in discharge of legal dues. He relied on the
decision of the Apex Court in case of Veera Exports v. T.
Kalavathy reported in (2002) 1 Supreme Court Cases 97, wherein
referring to Section 87 of the Negotiable Instruments Act pertaining
to material alteration in the Negotiable Instrument, the Apex Court
observed that the question whether the drawer was a willing party to
the alteration was a question of fact to be decided on basis of
evidence.
In
the present case, however, I find that reason for dishonour of
cheques was not insufficient fund but as already noted, account not
found and account closed respectively. In addition thereto, I also
find that both cheques contained extensive overwriting and
corrections on material aspects. As already noted, in cheque of Rs.
9 lakhs year of the cheque is changed form 1999 to 2009. Such
overwriting are clear and indisputable. It is also undisputed that
there is no counter signature of the petitioner on such corrections.
Similarly,
in cheque of Rs. 3 lakh the year 1999 previously written has been
completely scored out and date 22-7-09 is written. These correction
is also not countersigned by the petitioner though for some
correction in the same cheque have been countersigned by him.
Considering
all these aspects of the matter, I am of the opinion that complaint
under Section 138 of the Negotiable Instrument Act is not
maintainable. Permitting such complaint to proceed further only on
the ground that certain factual disputes are involved would be abuse
of process of the Court. This however, is not to suggest that by
fraudulently issuing cheque of a wrong account, if the petitioner
has committed any other offence, same should not be investigated
into.
With
above clarification, the petition is allowed. Complaint Annexure-A
being Criminal Case No.99/2010 is quashed.
Petition
is disposed of accordingly.
(Akil
Kureshi,J.)
(raghu)
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