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2020 (7) TMI 164 - HC - Indian LawsDishonor of Cheque - Vacation of the order of cognizance of offence on behalf of the accused / defendant - It is the case of the complainant (defendant / acccused) that he made inquiry and then he could come to know that with a dishonest intention, the cheques were presented before the Bank, thus the complainant felt cheated - HELD THAT:- It is an admitted case that after receipt of the notice under Section 138 N.I. Act and after a proceeding under Section 138 N.I. Act, which had been filed against the complainant, the complainant chose to file this complaint, which is the subject matter of this case. The Hon'ble Supreme Court in the case of SUNIL KUMAR VERSUS ESCORTS YAMAHA MOTORS LTD. AND ORS., [1999 (10) TMI 749 - SUPREME COURT], on amongst other, has held that a complaint and FIR after filing a complaint case under Section 138 N.I. Act, will amount to be an abuse of the process of the court. The complaint has been filed by the complainant by way of his defence to the proceeding under Section 138 N.I. Act, in which he is an accused. Further, the defence of the petitioner, which is the subject matter of the complaint, has been tested by two courts, i.e. Magistrate and the Sessions Judge and both of them rejected his version. The court below thus, has wrongly taken cognizance of offence under Sections 406/34 of the Indian Penal Code, and has issued summon to this petitioner. - application allowed.
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