TaxTMI 
TaxTMI 
2023 (4) TMI 1471
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....Act"). 2. Brief facts of the case are that respondent No. 2 Patel Davabhai, who is original complainant has filed criminal case on 5.9.2013 u/s 138 of the NI Act before the learned JMFC, Vadali inter alia on the ground that the complainant and the present petitioner belongs to same community and were knowing each other. Both used to visit each other frequently and as such they came in touch and have developed good relation. Therefore, prior to filing of the complaint, the petitioner has advanced Rs. 3,50,000/- from the complainant under the good relationship and as such, the petitioner has borrowed Rs. 3,50,000/- from the complainant. To repay the said amount, the petitioner has issued cheque No.001971 payable from the account maintained....
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....in question was returned unpaid because of fund insufficient. He would further argue that the present petitioner has wrote a letter to the SBI, Hatharwa branch and asked for the reason for cheque being returned. Pursuant to such query from the petitioner, the SBI, Hatharwa branch has given notice that the Khedbrahma Nagrik Sahkari Bank Limited in which the petitioner accused has maintained his account has been changed and because of that, the cheque was returned to the Hatharwa branch of SBI. Upon such, submission, he would further submit that Janta Sahkari Bank Limited, Pune, in which Khedbrahma Nagrik Sahkari Bank Limited has been merged has also given a letter in favour of the petitioner stating that since the KYC of the present petition....
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....his submission, learned advocate Mr. Mansuri has relied upon judgment of the Hon'ble Apex Court in case of Jugesh Sehgal Vs. Shamsher Singh Gogi reported in (2009) 14 SCC 683. 5. Since respondent No.2 though served, remained absent, there is no submission on behalf of respondent No.2. 6. As far as learned APP is concerned, he would submit that the petitioner, who has been served with statutory notice, was required to raise all these contentions/defence at the first instance in reply to the statutory notice, but the petitioner has failed to raise such grievance at the first instance in reply to the notice and therefore, the submission raised by learned advocate Mr. Mansuri at the most can be counted as a disputed question of defence, w....
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....pects which he has raised in this petition at the first instance by replying to the statutory notice. When, this question was put to learned advocate Mr. Mansuri appearing on behalf of the petitioner, he has no answer to such question and has fairly conceded that the present petitioner has not replied to the statutory notice issued by the complainant. 7.1 At this juncture, I may refer to judgment of the Hon'ble Apex Court in case of HMT Watch Limited Vs. M.A. Abida and another reported in 2015(11) SCC 776, wherein para, 10, 11 and 12, the Hon'ble Apex Court has observed following:- "10. Having heard learned counsel for the parties, we are of the view that the accused (respondent no.1) challenged the proceedings of criminal compl....
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....er Section 482 of the Code of Criminal Procedure is now well settled. Although it is of wide amplitude, a great deal of caution is also required in its exercise. What is required is application of the well-known legal principles involved in the matter. xxx xxx xxx 22. Ordinarily, a defence of an accused although appears to be plausible should not be taken into consideration for exercise of the said jurisdiction. Yet again, the High Court at that stage would not ordinarily enter into a disputed question of fact. It, however, does not mean that documents of unimpeachable character should not be taken into consideration at any cost for the purpose of finding out as to whether continuance of the criminal [pic]proceedings would....
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....iving its opinion on disputed questions of fact, before the trial court. 8. Undisputedly, all the contentions raised by the petitioner herein above are disputed issues and there the question of fact would be determined by the learned trial Court after recording evidence. Whether Khedbrahma Nagrik Sahkari Bank Limited in which the petitioner has maintained his account was merged with Janta Sahkari Bank Limited and the clearing house was not aware of the said aspect or whether the cheque has not been returned for the purpose of "Fund Insufficient" are all disputed questions of fact and can be decided after recording the evidence. When the learned trial Court has issued process, before the learned trial Court it was on bank return memo, whi....