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Judgment
Sr No.,Particulars,Cheque No. 137572
1.,Date of issue of cheque,15.12.2017
2.,Date of presentation,08.01.2018
3.,Date of dishonor,09.01.2018
4.,Date of communication,09.01.2018
5.,Date of issue of Notice u/s. 138 of the NI Act.,19.01.2018
6.,Date of return of the said notice sent at business address,06.02.2018
7.,Date of return of the said notice sent at residential address,15.02.2018
sent at the residential address of the applicant and was returned to the first respondent on 15th February 2018 and the applicant herein was intimated,,
the said notice on 27.01.2018.,,
It is submitted that, the averments made in the complaint are false, in as much as it is stated in the complaint that, the applicant has not replied to",,
the statutory notice issued by the first respondent. The first Respondent has not produced as single document to show as to when and where alleged,,
transaction took place and which documents were executed with regard to the said transaction. The first Respondent has failed to disclose his source,,
of income and financial capacity to give an alleged loan of Rs. 30,00,000/Â by cash to the applicants. It is submitted that the statement of bank",,
Account of the applicant will show that, the said cheque was part of the cheque book issued on 09.12.2011. The bank statement will also show that",,
since there was a change in the format of the cheque hence the bank had issued new cheque book. Hence the present cheque being issued as alleged,,
is not possible. The copy of the new cheque is also annexed to the petition to show that, the old cheque in question could not have been issued. It is",,
further submitted that, the statutory notice given by the first Respondent to the applicant is also vague and even on that ground the said Complaint is",,
liable to be quashed. The first respondent has misused an old cheque given by the Applicant many years ago and has cheated the applicant.,,
It is further submitted that, the trial Court has mechanically passed the order of issuance of process without application of mind, and without",,
considering the facts of the case. There is no legal enforceable liability, hence the complaint of the first Respondent is not maintainable. The offence",,
under Section 138 of the said Act is not made out hence the order of issuance of process against the applicant cannot legally sustain. Learned counsel,,
appearing for the applicant in support of aforesaid contention relied upon the unreported judgments of the Hon'ble Apex Court in the case of,,
Himanshu Vs. B. Shivamurthy and Anr Criminal Appeal No. 1465 of 2009. also in the case of A.C. Narayanan Vs. The State of Maharashtra and,,
Ors. CDJ 2017 BHC 1470,,
On the other hand, learned counsel appearing for the first Respondent invites attention of this Court to the affidavit in reply filed on behalf of the",,
first Respondent. Learned counsel appearing for the first Respondent, at the outset, denied all the allegations made in the application. It is submitted",,
that, the applicant has circumvent the remedy of Revision available to him before approaching the High Court. The applicant can file the Revision",,
challenging the impugned order however, applicant has directly invoked an inherent jurisdiction of this Court under Section 482 of the Code of Criminal",,
Procedure. The applicant is intentionally avoiding to avail the same remedy. It is submitted that, the first Respondent addressed two letters on",,
19.01.2019 to the applicant, one of his residential address and other at his business address. Both the letters were served upon the applicant. However,",,
the applicant with malafide intention wanted to avoid his liability and therefore, refused to accept the said letters. It was therefore submitted that, one",,
of applicants friend suggested applicant that he should attempt to serve letters upon the applicant through EÂ mail, it was at such time that the",,
Respondent No. 1 informed his friend that he is not aware as to how concept of EÂmail works. It is also aruged that first Respondent did not,,
possesses any EÂmail ID and is not comfortable and / or conversant to usage of EÂmail ID. However, the friend of first Respondent sought",,
permission of first Respondent to create an EÂmail I'd and once again served the applicant a copy of the notice dated 19.01.2018 upon the applicant.,,
It is submitted that, the friend of the first Respondent created a EÂmail ID on behalf of the Respondent No. 1 and addressed a copy of the notice",,
under Section 138 of the said Act to the applicant. It is submitted that, since Respondent No. 1 was not convergent with the technology, he could not",,
access the EÂmail ID created by his friend at his instance. It is submitted that the Respondent No. 1 did not possess any smartphone. It is submitted,,
that since first Respondent is not convergent with technological advancement and how to operate the EÂmail, he sent notices to the applicant vide",,
post on residential as well as business address of the applicant. The alleged reply of the applicant on 08.02.2018 if considered, there exist nothing",,
detrimental to the case of first Respondent made out before the said Court in the alleged reply of the applicant sent to the first Respondent. It is,,
submitted that alleged reply is in effect admitting that the cheque issued by the applicant, only defined that is drawn up is that applicant alleges a case",,
of cheating and in fact states that the applicant will file complaint in the police department as the applicant alleges that the first Respondent has,,
cheated the applicant. It is submitted that the present applicant has at no point of time elaborated as to what steps applicant took in pursuance of the,,
alleged case of cheating, which admittedly the applicant was put to notice way back in January 2018 when the cheque was dishonoured. It would not",,
be out of context to state that, the mere fact that the applicant alleges cheating but has not taken any steps even after a lapse of a period of more than",,
a year and half from the date from which the applicant alleges cheating, explains as to the fallaciousness alleged by the applicant only to shy away",,
from making such payments. The conduct of the applicant speaks volume as to the falsity and infirmity in the submissions made by the applicant. In,,
support of the aforesaid contentions learned counsel placed reliance on the judgments in the case of Purushottam s/o Maniklal Gandhi Vs. Manohar,,
K. Deshmukh and anr 2007 (1) Mh.L.J. 210, Darshan Singh Vs. State 2001 STPL (DC) 190 CAL & Prabhu Chawla Vs. State of Rajasthan and Anr",,
Criminal Appeal No. 842 of 2016 (SLP (Crl.) No. 3314 of 2009).,,
Heard the counsels appearing for the parties at length and with their able assistance perused the pleadings in the petition, grounds taken therein",,
and annexures thereto. The first point raised by the applicant that, the complaint filed by the first Respondent on 14th March 2018 is not maintainable",,
since not filed within limitation is concern, it would be relevant to mention the few relevant dates. First respondent in his reply has stated that, the",,
cheque was issued on 15.12.2017 same was presented in the bank on 08th January 2018. The said cheque was dishonored on the ground of,,
insufficient funds . The applicant communicated to the first Respondent on 09th January 2018 that the cheuqe is dishonored due to insufficient funds in,,
the account of applicant. The notice was issued by the first Respondent to the applicant on 19th January 2018 to his business as well residential,,
address. As mentioned by the first respondent in reply that the notice issued on business address was received on 06.02.2018 and notice sent at,,
residential address was received on 15.02.2018. Thereafter, complaint was filed on 14th March 2018. Upon plain reading of aforesaid dates prima",,
facie it appears that the date of return of the notice sent at residential address is 15th February 2018 and complaint is filed on 14th March 2018.,,
Therefore, according to complainant complaint is filed within time. It is the contention of the applicant that said notice was replied through email on",,
27th January 2018 and therefore, the complaint filed by the first Respondent is not within time. The another submissions is that when the notice was",,
returned from business address on 06.02.2018, the complaint should have been filed within 1 month. It appears that to find out whether the complaint",,
filed by the first Respondent was within limitation or otherwise, appreciation of documents is necessary. First respondent has stated that he has no",,
knowledge, how to access the email and also he does not possess the smartphone. Be that as it may, it appears from the material on record that the",,
trial Court will have to find out after appreciation of documents on record, whether the complaint filed by the first Respondent was within time or",,
otherwise. Prima facie it appears that notice sent on residential address of the applicant was received by the complainant i.e. by first Respondent on,,
15th February 2018 and complaint was filed on 14th March 2018. Therefore, at the threshold it cannot be concluded that complaint was not filed",,
within limitation. Therefore, trial Court will have to find out upon appreciation of documents placed on record, whether the applicant had knowledge of",,
accessing email, and as a matter of fact, whether he received the email sent by the applicant on 27th January 2018.",,
Another contention of the counsel for the applicant that, the first Respondent has not replied or produced on record single documents to show",,
when and where the alleged transaction between the applicant and first respondent had taken place and which documents were executed with regard,,
to said transaction, and what is the source of income of the first Respondent to pay such huge loan amount to the applicant. In this respect it is only",,
during trial the Trial Court will be able to appreciate the aforesaid contentions.,,
An another contention of the applicant that the statement of bank account of the applicant will show that the said cheque was part of the cheque,,
book issued on 09th December 2011 to the applicant, and there was change in the format of the cheque and now the applicant has been issued new",,
cheque book by the Bank and, therefore the Respondent has misused old cheque given by the applicant many years ago and has cheated the applicant",,
is concerned, it is for the trial Court to consider the above contention after appreciating the material placed on record. The learned Single Judge (R.C.",,
Chavan, J.) of the Bombay High Court in the case of Purushottam s/o Maniklal Gandhi Vs. Manohar K. Deshmukh and another (Supra) has taken a",,
view that: “It is open to a person to sign and deliver a blank or incomplete cheque and is equally open for the holder to fill up blanks and specify the,,
amount thereinâ€.,,
Prima facie it appears that signature on the subject cheque is not denied by the present applicant. In the light of the discussion in forgoing,,
paragraphs this Court is of the opinion that no interference is called for in the order of issuance of process. Hence, application stands rejected.",,
The observations made herein above are prima facie in nature and confined to the adjudication of the present Criminal Application. The trial Court,,
shall not get influenced by the aforesaid observations during the course of trial. All contentions are kept open for being agitated before the trial Court.,,