JUDGMENT :

M.R. Shah, J.

As common question of facts and law arise in both these petitions, and are between the same parties, they are being heard together and decided and disposed of by this common judgment and order.

2. Criminal Misc. Application No. 319 of 2009 has been preferred by the petitioner - original accused No.3 to quash and set aside the impugned complaint being Criminal Case No.1401 of 2008 filed by the respondent No. 2 - original complainant, under section 138 of the Negotiable Instruments Act, pending in the Court of learned Chief Judicial Magistrate, Court No. 7, Ahmedabad.

2.1. Criminal Misc. Application No.323 of 2009 has been preferred by the petitioner - original accused No.13 to quash and set aside the impugned complaint being Criminal Case No.1398 of 2008 filed by the respondent No.2 - original complainant, under section 138 of the Negotiable Instruments Act, pending in the Court of learned Chief Judicial Magistrate, Court No.7, Ahmedabad.

3. The impugned complaints have been lodged by the respondent No.2 herein - original complainant - State Bank of India, against the petitioner herein - original accused Nos.3 and 13 - The Visnagar Nagrik Sahakari Bank Limited, and others for the offences punishable under section 138 of the Negotiable Instruments Act. In the said complaints, the learned Magistrate has directed to issue process against the petitioner herein - original accused No. 13 also. Hence, the petitioner - original accused Nos. 3 and 13 has preferred both these petitions under section 482 of the Code of Criminal Procedure.

4. Mr.Dharmesh Shah, learned advocate appearing on behalf of the respective petitioner - original accused Nos. 3 and 13 - Bank has vehemently submitted that apart from the fact that the petitioner Bank had never issued any cheque and was functioning as Clearing Agent for Classic Bank, who is also one of the co-accused in the impugned complaints as per the instructions given by Reserve Bank of India. Even no notice has been issued by the original complainant as required under section 138 of the Negotiable Instruments Act. Therefore, it is submitted that in absence of any statutory notice as required under section 138 of the Negotiable Instruments Act, no complaint against the petitioner shall be maintainable. Therefore, it is requested to quash and set aside the impugned complaint qua petitioner herein - original accused Nos.3 & 13.

5. Mr.Hardik Soni, learned advocate appearing on behalf of the respondent No.2 - original complainant is not in a position to dispute and/or is not disputing that no statutory notice under section 138 of the Negotiable Instruments Act has been issued/served upon the petitioner herein - original accused Nos. 3 & 13. Therefore, as such he is not in a position to satisfy this Court as to how in absence of any statutory notice upon the petitioner herein - original accused Nos.3 and 13, as required under section 138 of the Negotiable Instruments Act, the impugned complaint is maintainable against the petitioner herein. However, he has submitted that even subsequently the petitioner herein can be arraigned as an accused in exercise of powers under section 319 of the Code of Criminal Procedure.

6. Mr.L.B. Dabhi, learned Additional Public Prosecutor has requested to pass appropriate order in the facts and circumstances of the case.

7. Heard the learned advocates appearing on behalf of the respective parties at length.

8. It is required to be noted that main criminal complaints have been filed against the petitioner herein - accused Nos. 3 & 13 and others for the offence punishable under section 138 of Negotiable Instruments Act. It is not in dispute that the petitioner herein is arraigned as an independent accused. Therefore, before filing/instituting any complaint against the petitioner herein under section 138 of the Negotiable Instruments Act, the petitioner herein - original accused Nos.3 and 13, was required to be served with statutory notice as required under sect