In the first place,
no details of any other transaction have been given in the complaint or even in the submissions made before this Court. In the second place, that the applicant
after having received a notice to pay the amount of cheque and threatened with criminal action on her failure to do so, would deposit an amount equivalent to
the cheque amount, towards some other transaction (for which there has been no demand), and invite criminal action against her, is something contrary to
common sense and logic and cannot be accepted.
This is a clear case where the prosecution has been initiated
inspite of the fact that the demand notice was complied with well within the time and entire amount of the cheuqe had been paid to the payee. Apparently, the complainant has been filed to recover certain other amounts from the
applicant which are said to be due and payable by her to the respondent no.2.
Even if, such amounts are due, the applicant cannot be prosecuted in respect of an offence punishable under section 138 of the Negotiable Instruments Act, as
the amount of cheque has already been paid and conditions requisite for initiation of the prosecution under the said section are not fulfilled.
7. The view of the Magistrate that 'this aspect would need to be decided during the trial' though that an amount of money equal to cheque A3
amount was deposited in the Bank account of the respondent No.2 after the
demand notice was served, was not disputed, is not proper.
8. Continuation of the proceedings against the applicant would amount to abuse of the process of law and would by itself result in mis-carriage
of justice. This is a fit case where the inherent powers of this Court must be exercised to quash such prosecution.
Bombay High Court
SUNITA GAJANAN GULAWE vs The State Of Maharashtra on 3 September, 2013
Bench: A.M. Thipsay
Citation; 2013 ALL M R(CRI)4346
1. By consent, heard finally. om
2. The applicant is the accused in S.C.C.No.361 of 2011, pending before the Judicial Magistrate First Class at Jintur, District Parbhani. The said case arises on a complaint filed by the respondent no.2 herein and is in respect B
of an offence punishable under Section 138 of the Negotiable Instruments Act. The applicant is aggrieved by the order issuing process as passed by the learned Magistrate. As according to her, on receipt of the notice of demand, A3
::: Downloaded on - 07/09/2013 22:50:53 ::: 2 APPLN1969.13.odt the applicant has paid the entire amount of cheque within the stipulated time by rt
depositing the same in the account of the respondent no.2 i.e. the original complainant. According to the applicant, therefore, the prosecution of the ou
applicant is totally mis-conceived and liable to be quashed. C
3. I have perused the complaint, the order issuing process as passed by the Magistrate, the application for discharge made by the applicant before h
the Magistrate, the reply thereto given by the respondent no.2, as also the order passed by the learned Magistrate on the said application; as copies of all these ig
documents are annexed to the application. H
4. It is clear that the respondent no.2, though has made a claim in the complaint that the applicant (original accused) had failed to make the y
payment of the amount of cheque within 15 (fifteen) days of the receipt of the ba
demand notice, he has admitted that an amount of Rs.30,000/- was credited into his account by the applicant within 15 days from the receipt of the said notice. om
That, the cheque was of Rs.30,000/- is also not in dispute. The claim of the respondent no.2 that the applicant has failed to pay amount of cheque is on the basis of an interesting claim that 'what was paid by the applicant was not B
towards the amount of cheque, but was towards some other transaction.' A3
::: Downloaded on - 07/09/2013 22:50:53 ::: 3 APPLN1969.13.odt
5. It is not possible to accept such a contention. In the first place, rt
no details of any other transaction have been given in the complaint or even in the submissions made before this Court. In the second place, that the applicant ou
after having received a notice to pay the amount of cheque and threatened with criminal action on her failure to do so, would deposit an amount equivalent to C
the cheque amount, towards some other transaction (for which there has been no demand), and invite criminal action against her, is something contrary to h
common sense and logic and cannot be accepted.
6.
ig
This is a clear case where the prosecution has been initiated H
inspite of the fact that the demand notice was complied with well within the time and entire amount of the cheuqe had been paid to the payee. Apparently, the complainant has been filed to recover certain other amounts from the y
applicant which are said to be due and payable by her to the respondent no.2. ba
Even if, such amounts are due, the applicant cannot be prosecuted in respect of an offence punishable under section 138 of the Negotiable Instruments Act, as om
the amount of cheque has already been paid and conditions requisite for initiation of the prosecution under the said section are not fulfilled. B
7. The view of the Magistrate that 'this aspect would need to be decided during the trial' though that an amount of money equal to cheque A3
::: Downloaded on - 07/09/2013 22:50:53 ::: 4 APPLN1969.13.odt amount was deposited in the Bank account of the respondent No.2 after the rt
demand notice was served, was not disputed, is not proper. ou
8. Continuation of the proceedings against the applicant would amount to abuse of the process of law and would by itself result in mis-carriage C
of justice. This is a fit case where the inherent powers of this Court must be exercised to quash such prosecution. h
9. The Application is allowed. ig
The order issuing process against the applicant as passed by the Magistrate and proceedings of the S.C.C.No.361/2011 are quashed and set H
aside.
10. The application is disposed of in the aforesaid terms. y
ba
( ABHAY M. THIPSAY, J. )
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