Gujarat High Court
Narang Surgicals Through D V Narang vs State Of Gujarat & on 17 February, 2017
Author: Akil Kureshi
Bench: Akil Kureshi
R/SCR.A/1812/2011 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION NO. 1812 of 2011
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NARANG SURGICALS THROUGH D V NARANG....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR VIRAT G POPAT, ADVOCATE for the Applicant(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 2
MR MANISH M KAUSHIK, ADVOCATE for the Respondent(s) No. 2
MR SANJAY PRAJAPATI, ADVOCATE for the Respondent(s) No. 2
MS JIRGA JHAVERI, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
Date : 17/02/2017
ORAL ORDER
1. Petitioner, the original accused, in a cheque bouncing case, has prayed for quashing and setting aside the complaint Annexure H filed by respondent No.2 under section 138 of the Negotiable Instruments Act.
2. Brief facts are as under:
The petitioner herein had issued a cheque dated 20.11.2010 in favour of respondent No.2 (hereinafter to be referred to as the complainant) for a sum of Rs. 1,13,000/-. Upon presentation, the said cheque was returned. The complainant therefore issued a notice dated 03.01.2011 to the present petitioner calling upon Page 1 of 5 HC-NIC Page 1 of 5 Created On Sun Aug 13 17:18:08 IST 2017 R/SCR.A/1812/2011 ORDER the petitioner to pay the said sum of Rs.
1,13,000/- within fifteen days from the service of notice, failing which, the complainant would initiate proceedings under section 138 of the Negotiable Instruments Act and also for offence punishable under sections 406 and 420 of IPC.
3. Case of the petitioner is that as soon as he received such notice, he made arrangement for actual payment of the said sum of Rs. 1,13,000/-. For such purpose, he drew a demand draft of the said amount from his bank i.e. Axis Bank, Jodhpur Branch and deposited the said demand draft in the bank account of the complainant in the Punjab National Bank on or around 13.01.2011. This was also conveyed to the plaintiff by the petitioner under a communication dated 13.01.2011. In such communication, the advocate of the petitioner pointed out to the complainant that a sum of Rs. 1,13,000/- has been deposited through demand draft which is deposited in the Punjab National Bank account of the complainant.
4. According to the petitioner, due to error of the complainant's bank, such demand draft was lost in transit and actual payment therefore, was not received by the complainant. In support of this, the petitioner has placed on record a letter dated 19.02.2011 written by the Punjab National Bank to the Axis Bank, Jodhpur Branch pointing out that the said draft was presented for collection on 15.01.2011 but was returned with the endorsement 'not drawn on us' and accordingly, the drawee Page 2 of 5 HC-NIC Page 2 of 5 Created On Sun Aug 13 17:18:08 IST 2017 R/SCR.A/1812/2011 ORDER did not receive the amount. It was further conveyed that the draft appears to be lost in transit. Axis Bank was, therefore, requested to provide a duplicate of the draft. Case of the petitioner further is that immediately the petitioner got in touch with his bank and obtained a duplicate draft of the original. However, in the meantime, the complainant, without disclosing the full facts, filed the cheque bouncing complaint, in which, the Court issued summons. The petitioner upon receipt of the summons, appeared before the Court and filed a pursis dated 28.02.2011 disclosing clear intention to repay the amount and also presented the duplicate of the draft before the Court alongwith such pursis. The complainant, however, refused to accept the same, upon which, the present quashing petition has been filed. I am informed that under the order of the Court, the petitioner has deposited the said sum of Rs.
1,13,000/- before the Court.
5. The facts noted above are not disputed by the complainant. I would, therefore, proceed on the basis of such facts. Even otherwise, the petitioner's facts are easily verifiable and not possible to be disputed. It would thus emerge that upon receipt of the notice of cheque bouncing, within the time permissible, the petitioner made arrangements to pay the cheque amount to the complainant. A demand draft was drawn and, in fact, deposited in the complainant's bank account. The complainant, however, did not receive the amount due to inter bank defect/default. When the Punjab National Bank sent the demand Page 3 of 5 HC-NIC Page 3 of 5 Created On Sun Aug 13 17:18:08 IST 2017 R/SCR.A/1812/2011 ORDER draft to the Axis Bank for realization, erroneously, it appears to have been conveyed that the same was not drawn on that branch. Punjab National Bank letter to the Axis bank would further suggest that the draft was lost in transit. Surely, the petitioner cannot be blamed for non-payment of the amount by the complainant in such circumstances. The bona- fides of the petitioner were clear. First when he immediately upon receipt of the notice of cheque bouncing made arrangement to repay the amount and thereafter, without any further delay, soon upon receipt of the summons of the court filed a pursis disclosing the relevant facts and offering to pay to the complainant, the said amount through duplicate draft. Even before the Court, the petitioner has deposited the amount which the complainant has refused to receive.
6. In view of such facts, the complaint being Criminal Case No. 31 of 2011 is quashed, however, subject to the following:
The Registry shall return the said amount of Rs. 1,13,000/- to the petitioner with accrued interest, if any. The petitioner shall, within fifteen days of receipt of such amount from the Registry, post a demand draft of the entire amount so received from the Registry to the complainant under a registered post A.D.
7. The petition is disposed of.
Page 4 of 5 HC-NIC Page 4 of 5 Created On Sun Aug 13 17:18:08 IST 2017 R/SCR.A/1812/2011 ORDER (AKIL KURESHI, J.) Jyoti Page 5 of 5 HC-NIC Page 5 of 5 Created On Sun Aug 13 17:18:08 IST 2017