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2023 (9) TMI 442 - GUJARAT HIGH COURTDishonour of Cheque - insufficient funds - notice not served upon to the applicants / Directors of the company - HELD THAT:- It appears that complainant issued demand notice and the same was served to the accused no.1 Company on 29/11/2018. However, in spite of the notices issued to accused No. 2 to 5 addressed on same postal address of accused No. 1 Company, returned unserved to the accused No. 2 to accused no.5 by the postal department with an endorsement “Not Delivered Unclaimed“ on 29/11/2018, hence the legal demand notice to accused No. 2 to 5 may be considered as deemed service under Section 22 of General Clauses Act. All the accused failed to clear their cheque value and neglected to make the payments to the Complainant. It appears from the record that the cheque has been dishonoured with remarks of “Funds Insufficient” and the accused have not complied with the legal demand notice. At this stage, in a recent decision of the Hon’ble Supreme Court in case of Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra and Ors., [2021 (4) TMI 1244 - SUPREME COURT], is required to be referred to. After taking into consideration the earlier decision on exercising the powers under Section 482 of the Code of Criminal Procedure including the decision of State of Haryana V. Bhanaj Lal, [1990 (11) TMI 386 - SUPREME COURT] - In view of the finding given by the Apex Court in case of Neeharika Infrastructure Pvt. Ltd., it transpires that the power of quashing of criminal proceedings should be exercised very sparingly and with circumspection and that too in rarest of the rare cases and it was not justified for the Court in embarking upon an inquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the inherent powers do not confer any arbitrary jurisdiction on the Court to act according to its whims and fancies. It appears from the order of issuance of summons passed by learned trial court on 04.09.2019 that under the court inquiry under Section 202 of the Code of Criminal Procedure, the complainant has been heard wherein he has stated that when the offence was committed by the accused no.2 to 5, at that time time they were responsible Directors and involved in the day to day affairs of the company, therefore, offence is made out against them and requested to issue process against them under Section 141 of the NI Act and while considering the complaint as well as documentary evidences produced during the inquiry under Section 202 of the Code, the learned trial court has passed order of issuing process against the accused no.1 to 5. Thus, no case is made out to quash the criminal proceedings at this stage while exercising the powers under Section 482 of the Code of Criminal Procedure. No interference is required in the order passed by learned trial court vide order dated 04.09.2019 regarding issuance of process against the accused no.1 to 5 and accordingly, present application stands rejected.
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