IMPORTANT POINT
Dishonour of cheque – Jurisdiction under Section 482 of Cr.P.C. or Article 226 Constitution of India is requires to be exercised in circumspection and sparingly.

JUDGMENT (ORAL)

Heard learned advocate Mr. Pushpadatta Vyas for the petitioner.

2. By way of this petition filed under section 482 of Cr.P.C. read with Article 226 and 227 of the Constitution of India, the petitioner prays for following reliefs in para 7:—

“(A) Your Lordship be pleased to call for R & P of the complaint filed by respondent no.2 in the Court of Ld. Judicial Magistrate First Class, Valia, District Bharuch bearing Criminal Case No.691/2021 under section 138 of the Negotiable Instrument Act at Annexure A and quash the same as well as quash the order at Annexure A collectively dated 15/05/2023 and order dated 14/10/2023 at Annexure H with any further proceeding thereof in the interest of justice.

(B) During the pendency admission and final disposal of the petition, Your Lordship be pleased to stay the complaint filed by respondent no.2 in the Court of Ld. Judicial Magistrate First Class, Valia, District Bharuch bearing Criminal Case No.691/2021 under section 138 of the Negotiable Instrument Act at Annexure A and further orders as well proceeding thereof.

(C) The cost of this petition be granted.

(D) Your Lordship be pleased to grant such other and further reliefs that is just, fit and proper in the facts and circumstances of the case.”

3. For the purpose of admissibility of this petition, relevant facts are stated thus:—

3.1. Respondent no.2 has filed Criminal Case No.691 of 2023 before the learned JMFC, Valiya under section 138 of N.I. Act alleging that as many as 4 cheques totaling Rs.28 lakhs given by the petitioner have been return unpaid. Amount of cheques are not paid even after statutory notice was served (Annexure A). Complainant has filed private complaint alleging offence under section 138 of N.I. Act against the petitioner.

3.2. Learned JMFC, Valiya has issued process against the present petitioner. Process was challenged by way of Criminal Revision Application No.94 of 2023 before the learned District Court, Bharuch. Detail and comprehensive judgment therein did not find favour the petitioner. Thus, the petitioner is before this Court by way of this petition seeking above quoted reliefs.

4. Learned advocate Mr. Vyas for the petitioner referring to judgment in the case of Haji Iqbal @ Bala v/s. State of Uttar Pradesh [2023 (0) AIJEL-SC 72165] and Girishbhai Ambalal Rathod v/s. State of Gujarat [2023(0) AIJEL-HC 247138] would submit that it was duty of the Court to look into the matter and attentive circumstances emerging from the record of the case, over and above averments, if it is found that filing of complaint is vexatious and frivolous proceedings, the Court may quash by reading the complaint / FIR in between the lines.

4.1. Elaborating his submissions, learned advocate for the petitioner would submit that averments made in the complaint (Annexure A) as well as statutory notice (Annexure B) indicates transaction regarding flat No.C/202 to C/206 of the Royal Residency for the purpose of issuance of cheque in question. He would further submit that according to complaint and averments made therein, 4 cheques totaling Rs.28 lakhs were given to the original complainant for the purpose of selling flat No.C/202 to C/206 of Royal Residency and since said cheque returned unpaid, complaint came to be filed.

4.2. Learned advocate would also refer to page no.104 of the compilation to submit that agreement was executed between complainant and petitioner which indicates that questioned cheques were issued towards flat No.C/402 to C/406 of Royal Residency. This submission is made to argue that there is stark difference in transaction stated in agreement at Page no.104 and complaint (Annexure A) regarding flats for which alleged issuance of cheques took place. Therefore, he would submit that cheques in question are not issued for existing debt or liability. In short, it is submitted that according to complainant, cheques in question were given towards transaction of flat Nos.C/202 to C/206 of Royal Residency b