ORAL ORDER

[1] By way of present petition under Section 482 of the Code of Criminal Procedure, 1973, the present petitioner seeks to challenge the proceedings being Criminal Case No.82910 of 2021 under Section 138 of the Negotiable Instruments Act (for short, “the Act”) pending before the learned Additional Senior Civil Judge and Additional Chief Judicial Magistrate (Negotiable Instruments Act) at Surat.

[2] The facts of the case, as gathered from the memo of petition, are as under:

[2.1]It is the case of the complainant that the son of the present petitioner has borrowed a sum of Rs.16,50,000/- from the respondent No.2 herein – complainant. In order to repay that amount, the present petitioner being father has issued a cheque No.546423 dated 20th July

2021 amounting to Rs.16,50,000/- drawn on the Axis Bank, Naranpura Branch, Ahmedabad in favour of the present respondent No.2 –

complainant.

[2.2] Upon being presented the aforesaid cheque by the present complainant, the said cheque came to be dishonoured. Thus, the statutory notice dated 4th August 2021 (a copy thereof is not produced on record) came to be issued to the present petitioner. The present petitioner has not complied with the said notice, and thereby, respondent No.2 has approached to the Court of Senior Civil Judge and Additional Chief Judicial Magistrate, Surat by way of filing a complaint being Criminal Case No.92910 of 2021 under Section 138 of the Act against the present petitioner.

[3] It is also orally submitted by the learned advocate for the petitioner that even F.I.R. for the offences punishable under Sections 406, 420 and 506(2) of the Indian Penal Code came to be filed by the complainant against the present petitioner on the same facts of allegations (a copy thereof is not produced on record).

[4] Being aggrieved by the aforesaid, the present petitioner has approached this Court by way of this Special Criminal Application, praying for quashing and setting aside the proceedings of the criminal case referred to above.

[5] I have heard Mr. Dhaval Vakil, learned advocate appearing for the petitioner and Ms. Moxa Thakkar, learned A.P.P. appearing for the respondent No.1 – State of Gujarat.

[6] Mr. Vakil has mainly submitted that the statutory notice dated 4th August 2021 is not duly served upon the present petitioner, and thus, in absence of the service of statutory notice, the impugned complaint under Section 138 of the Negotiable Instruments Act is not maintainable. He submitted that apparently, the endorsement of the postal department on the cover of statutory notice, it seems the address of the present petitioner, as narrated, is “Keyurkumar Prabhudas Patel, A/12, Saundarya Apartment, Near Ghatlodiya Police Station, Ghatlodiya, Ahmedabad”, whereas, the present petitioner is residing at “E/12, Saundarya Apartment, Near C.P. Nagar, Ghatlodiya, Ahmedabad”. In that view of the matter, according to Mr. Vakil, it cannot be said that the statutory notice was served upon the present petitioner.

[7] Mr. Vakil next submitted that before filing of complaint under Section 138 of the Negotiable Instruments Act in the Court below, respondent No.2 has also registered an F.I.R. for the offences punishable under Sections 406, 420 and 506(2) of the Indian Penal Code against the present petitioner for the same set of allegations, and thereby, according to Mr. Vakil, the initiation of impugned complaint under Section 138 of the Act is nothing, but an abuse of the process of law.

[8] Mr. Vakil lastly submitted that as such, the cheque in question has been obtained under coercion. He further submitted that the complainant along with two police officers have come to the house of the present petitioner and under threats and coercion, the complainant was made to sign the cheque, to which, later on, the complainant has also registered the complaint before the concerned police station.

[9] By making above submissions, Mr. Vakil has prayed this Court to quash and set aside the criminal case ref