The issuance of a cheque implies liability under the NI Act, and courts should not quash complaints based on disputed facts without trial.

ORDER :

J. C. DOSHI, J.

1. By way of this petition under Article 226 of the Constitution of India r/w section 482 of the Code of Criminal Procedure, 1973, the petitioner has prayed to quash and set aside the proceedings of Criminal Case No.87 of 2015 pending before the Id. Metropolitan Magistrate Court, Ahmedabad.

2. Brief facts of the case are as under:-

2.1 As per case of the complainant, applicant is carrying out activity of manufacturing High Life brand speed precision pillar machine radial drill machine and magnetic drill and machine and complainant is dealer of Bosch Ltd. and distributor of drill machine. In the year 2005-2006, the applicant had purchased two machines and transaction was completed and thereafter another set of 10 machines were ordered on 10.09.2014 for three machines and on 17.09.2014 for another three machines. During this period, 3 drill machines were spoiled and send to respondent no.2 on 18.10.2014 for repairing and on that day, petitioner gave cheque of Rs.1,33,500/- to respondent no.2. On 06.11.2014, respondent no.2 has returned all the machines to applicant. The respondent no.2 gave deliver of machines amounting to Rs.1,78,000/- + 24,531/- for maintenance. Respondent no.2 deposited advance dheque dated 30.01.2014 of Rs.1,78,000/- bearing No.684447. Respondent no.2 deposited the said cheque.

2.2 The complainant had deposited the cheque given for security purpose and the same came to be dishonoured. The complainant had therefore lodged a complaint under section 138 of the Negotiable Instruments Act. The said complaint came to be registered as Criminal Complaint No.87 of 2015.

2.3. The Learned Metropolitan Magistrate, Ahmedabad was pleased to issue process against the accused no.1 i.e. present petitioner vide its order dated 13.04.2015. The said order was passed despite the fact that no complaint under section 138 is maintainable in the present facts and circumstances of the case.

2.4. Hence, present petition.

3. Learned advocate Ms. Joshi for the petitioner in her submission argued that the cheque in question is not handed over to the complainant for any subsisting or legally enforceable liability, which subsists on the date of the cheque. She would further submit that the documents on record produced by the complainant itself indicates that the cheque in question was given towards guarantee as per the payment terms. Therefore, she would submit that it could be treated that the cheque in question was granted towards security for liability which may arose on subsequent date. She would submit that goods which were sold to petitioner were defective goods. Cheque was given to payment of goods purchased but since goods were defective no liability arise upon the petitioner to pay bill amount. In premises of this fact no subsisting liability exist on day of cheque presented for encashment. She would further submit that the learned trial Court committed serious error in issuing process without referring any documents on record.

3.1 In nutshell, learned advocate for the petitioner submits that since the essential ingredients of offence u/s 138 of the NI Act are not satisfied, issuance of process against the petitioner by the learned trial Court is gross error.

3.2 In support of her submissions, learned advocate Ms.Joshi has relied on judgment of Hon'ble Supreme Court in the case of M/s. Indus Airways Pvt. Ltd. v/s. M/s. Magnum Aviation Pvt. Ltd. [ 2014 (12) SCC 539 ] and judgment of this Court in the case of Nikhil P.Gandhi v/s. State of Gujarat [Criminal Misc. Application No.968 of 2014].

3.3 Upon above submission