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2019 (6) TMI 448 - HC - Indian LawsDishonor of Cheque - insufficiency of funds - section 138 of NI Act - the offences alleged in the complaint are not made out - HELD THAT:- It is not the case of the complainant that by fabricating the cheques, the amount was credited into the account of the accused, thereby resulting in misappropriation of amount. The contention of the complainant that the documents in respect to the liability are fabricated also Primafacie appears to be after thought. There is no evidence of fabrication of documents. Admittedly Civil proceeding are pending before the appropriate Court and the claims of respective parties are subject matter of the said proceeding. The Cheque for an amount of ₹ 71,17,132.90/ was dishonoured. The said Cheque was also signed by the complainant. It was dishonoured on 12092000. After receipt of intimation from banker, notice was issued to the complainant demanding the amount in accordance with Section 138 of Negotiable Instrument Act. According to the petitioner the said notice was not replied by the complainant. The defence of respondent No.1 is that there is failure to establish Primafacie that notice was issued by the advocate for the complainant therein and was received by the accused - The fact remains, there was no amount in the account of the complainant and the cheques were dishonoured for insufficient funds. The proceedings under Section 138 were initiated by the accused. The petitioners have relied upon the invoices in support of their claims. Civil proceedings are also pending in the respective Court. Several accused are impleaded in this proceeding. The allegations against them are vague. It would be an abuse of Process of Law to continue the prosecution against the petitioners and hence the proceedings are required to be quashed and set aside - Petition allowed.
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