Point of Law: Dishonored of Cheque - Where a criminal proceeding is manifestly attended with mala fide and/or where proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on accused and with a view to spite him due to private and personal grudge.

JUDGMENT :

Rule. Learned Additional Public Prosecutor waives service of notice of rule on behalf of respondent State.

Though served, none appears on behalf of respondent No.2, original complainant. With the consent of learned advocates on both the sides, the matter was taken up for final hearing today.

1. By way of this petition filed under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure (for short, “the Cr.P.C.”), the petitioner has prayed to quash and set aside the complaint being C.R. No. I – 119 of 2019 registered with A Division Police Station, Rajkot City for the offences punishable under Sections 5, 40 and 42 of the Gujarat Money Lenders Act, 2011 and Sections 385, 387, 504 and 506(2) of IPC and the proceedings initiated consequent thereto.

2. The facts in a nutshell are as under:-

The petitioner herein is an Advocate by profession and is also running an NGO in the name of “Rajkot Legal Support Services” at Rajkot. It is the say of the petitioner that some time in the year 2016, the respondent No.2 approached the petitioner, through his brother-in-law, seeking financial assistance for some personal reasons. The respondent No.2 assured the petitioner that he would repay the amount of loan as and when the petitioner demands the same. Accordingly, between 2016 to 2019, the petitioner paid different amounts as loan to the respondent No.2. As part of repayment of the amount borrowed from the petitioner, the respondent No.2 issued two cheques, viz. (i) No.000076 dated 16.07.2019 for Rs.3,00,000/- and No.000146 dated 16.07.2019 for Rs.2,50,000/-, in favour of the petitioner in July 2019. The petitioner deposited both the cheques; however, the same were returned with the endorsement of “Insufficient Funds” on 17.07.2019. The petitioner sent a Legal Notice dated 06.08.2019 to the respondent No.2 calling upon him to repay the amount, which was served upon the respondent No.2 on 07.08.2019.

2.1 It is the say of the petitioner that in spite of service of Legal Notice, the respondent No.2 did not repay the loan amount and instead on 02.09.2019 filed a criminal complaint against the petitioner, which was registered as C. R. No. I - 119 of 2019 with A Division Police Station, Rajkot City for the offences punishable under Sections 5, 40 and 42 of The Gujarat Money Lenders Act, 2011 and Sections 385, 387, 504 and 506(2) of IPC. Hence, this petition.

3. Learned advocate Mr. S. M. Sojatwala appearing for the petitioner submitted that no ingredients of the offence alleged are made out against the petitioner. It is contended that the impugned complaint is an afterthought and a counter-blast to the legal proceedings initiated by the petitioner against the respondent No.2 under the provisions of the Negotiable Instruments Act, 1881 (for short, “the N.I. Act”). The impugned complaint has been filed only with a view to harass and to pressurize the petitioner to withdraw the proceedings initiated by him under the N.I. Act. Hence, the impugned complaint is a sheer abuse of the process of law and it deserves to be quashed and set aside.

3.1 Learned advocate Mr. Sojatwala took the Court through the averments made in the impugned complaint to submit that the respondent No.2 has admitted the factum of receipt of loan amount from the petitioner as also the issuance of cheques in favour of the petitioner. It is submitted that the petitioner is an Income-Tax Assessee and that the amount lent by the petitioner to respondent No.2 is reflected in his Income Tax Returns. The respondent No.2 has not given any reply in response to the Legal Notice dated 06.08.2019 issued by the petitioner. If at all, the petitioner had recovered exorbitant amount as interest, the respondent No.2 had the remedy to file criminal complaint against the petitioner; however, no such steps were taken by the respondent No.2.

Further, the impugned complaint is also a step for halting the payment of interim compensation under Section 143A of the