ORAL JUDGMENT

1. By this application, under Section 482 of the code of Criminal Procedure, 1973 the applicant seeks to invoke the inherent powers of this Court, praying for quashing of the Criminal Case No.577 of 2009 pending before the learned Metropolitan Magistrate (Negotiable Instruments Act), Court No.34, Ahmedabad and all the proceedings arising thereto.

2. Learned advocate for the applicant has submitted that the present petition is filed under Section 138 of the Negotiable Instruments Act (for short, “the Act”), 1881 by respondent No.2 through her power of attorney holder. He further submits that there was no any transaction took place between the applicant and the respondent No.2. He also submits that the blank cheques issued to husband of respondent No.2 and the said cheques are misused for oblique motives even drawee bank viz. Gujarat Industrial Cooperative Bank Limited (for short, “the Cooperative Bank”) had already closed down its business and ceased to be member of Ahmedabad Bankers Clearing House with effect from 2008. He further submits that the cheques had neither been presented nor it went for clearing nor it had been dishonoured.

3. Learned advocate for the applicant, therefore, submits that no offence is made out and even entire transaction is of civil nature and present complaint is not maintainable. Hence, he has requested to quash and set aside the present complaint, as the applicant having good relations or friendship with husband of respondent No.2 and he is a practicing advocate. He further submits that the husband of respondent No.2 has misused the blank cheques by filling up all details without knowledge of the present applicant.

4. It is further submitted by the learned advocate for the applicant that the cheques were presented by the respondent No.2 in her bank on 30.07.20209, which was returned with an endorsement that Gujarat Industrial Cooperative Bank Ltd. was closed down and cheques were returned on 07.09.2009 and then a statutory notice was issued on 30.09.2009 and then a complaint has been filed, which is nothing but abuse of process of law. It is submitted that however the cheques were never presented in the bank.

5. Learned advocate for respondent No.2 has opposed the grant of present petition and submits that the applicant has suppressed the material fact. He further submits that the learned trial Court has rightly taken the cognizance of offence and trial is proceeded and the matter is filed in the year 2009. Further he submits that the evidence on affidavit is rendered by the complainant on 06.07.2013 and then filed an application under Section 91 of the Criminal Procedure Code for production of the documentary evidences on 20.09.2013. After cross-examination of prosecution witness No.2, the applicant has filed the present petition. Hence, he requested to dismiss the present petition as the present petition is filed suppressing the material fact and as trial is in progress.

6. I have given the thoughtful consideration and considering the arguments canvassed by the learned advocates for the respective parties.

7. At the outset, it is required to be noted that the complaint is filed by respondent No.2 before the Court of Metropolitan Magistrate, Ahmedabad on 17.09.2009 through her power of attorney holder. The cheque No.25671 dated 22.07.2009 was drawn by the present applicant on Gujarat Industrial Cooperative Bank Ltd. and the same was presented by the original complainant in the SBI Bank on 30.07.2009, but the return memo was not issued but wrote a letter to inquire in the Clearing House. Hence, once again the chque was presented on 11.08.2009 and then the cheque was returned on 07.09.2009 with an endorsement that the Bank is “closed down”. Hence, a statutory notice was issued on 01.10.2009 and the same was duly served on 05.10.2009 and then present complaint was filed on 17.11.2009, while the cheque in question was issued on 22.07.2009 i.e. after suspension of the Bank from the Clearing Hous