1 16 S.B. CIVIL WRIT PETITION NO.540/2006. Shailesh Kumar Jain Vs. Bank of Baroda & Ors. Date of Order :: 6th February 2009. HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. J.P. Bhardwaj, for the petitioner. Mr. J.K. Chanda, for the respondents Nos. 1 & 2. ..... BY THE COURT: This writ petition questioning the coercive money recovery proceedings was entertained by this Court on 03.02.2006 after noticing the submissions on behalf of the petitioner that he was ready and willing to square up the entire account with the respondent Bank and was ready to pay the reasonable dues; and in all bona fides, even before approaching the Court, he had deposited an amount of Rs.2,00,000/- with the respondent Bank on 27.01.2006 and was ready to deposit another amount of Rs. 1,00,000/-. Taking note of such submissions and looking to the overall circumstances, this Court issued notices and ordered stay over further recovery proceedings on the condition that the petitioner would deposit the said amount of Rs. 1,00,000/- with the respondent Bank on or before 09.02.2006. It is not in dispute that the requirements of the order 2 dated 03.02.2006 were indeed carried out by the petitioner. This matter was thereafter taken up for consideration on 16.01.2009 when the petitioner Shailesh Kumar Jain referred, inter alia, to the fact that a part of his land placed in mortgage with the respondent Bank went in acquisition and for compensation against such acquisition, a cheque bearing No. 647136 dated 11.03.2008 was issued by the Project Director, National Highway Authority of India and Sub-Divisional Officer, Mount Abu in the sum of Rs. 2,32,287/- payable to “Shailesh Kumar son of Shanti Swaroop Jain (Mortgage – Bank of Baroda)” drawn on the Bank of Baroda, Mount Abu; and the petitioner pointed out that the said cheque was returned unpaid and in that relation, proceedings under Section 138 Negotiable Instruments Act had been adopted by him against the said Project Director and the Sub-Divisional Officer. This Court expressed prima facie reservations on such proceedings as adopted by the petitioner; however, consideration of the matter was deferred at the request of the learned counsel for the respondent Bank who prayed for some time to complete his instructions and to place on record the correct statement of account of the petitioner. On 20.01.2009, it was given out by the learned counsel for the respondent that he had received the statement of 3 accounts and would be filing the same whereas it was given out on behalf of the petitioner that he had made a representation to the concerned Sub-Divisional Officer; and while directing the petitioner to place a copy of such representation on record, the matter was adjourned to 28.01.2009. On 28.01.2009, while it was noticed that the parties have placed the relevant documents on record, it was further noticed that the petitioner did make a representation along with two post-dated cheques of 15.02.2009 and 28.02.2009. However, upon this Court expressing reservations on some of the oral submissions that were made by the petitioner earlier and that were found contradicted by the record and then the very propriety and legality of the aforesaid proceedings under Section 138 of the Negotiable Instruments Act and above all, the uncertain nature of the propositions as stated by the petitioner for settlement of the account, learned counsel for the petitioner sought a couple of day's time to complete his instructions and matter was adjourned to 04.02.2009. On 04.02.2009, the matter was further adjourned at the request of the parties to be taken up for consideration today. Today, learned counsel for the petitioner has placed for perusal the order dated 04.02.2009 as passed by the Judicial 4 Magistrate, Abu Road in Criminal Case No. 529/2008 whereby the learned Magistrate has accepted the prayer made by the petitioner-complainant for withdrawal of his complaint under Section 138 of the Negotiable Instruments Act and has dismissed the said complaint as withdrawn, while discharging the non-petitioners therein. Learned counsel for the petitioner submits that the petitioner expresses regrets for the submissions as made earlier particularly in relation to the deposit of the amount of Rs. 65,000/- with the respondent Bank in relation whereof, for bona fide mistake, the petitioner could not point out to the Court that the said amount had been received back by him. Learned counsel submits that with such regrets the petitioner has deposited an amount of Rs. 2,000/- in Legal Aid. Learned counsel submits that the petitioner seeks to sincerely pursue his representations as made earlier and seeks to settle out the matter with the Bank concerned and, therefore, seeks permission not to proceed with this writ petition any further and for withdrawal. Though learned counsel for the respondent Bank submits that the respondent Bank was unnecessarily got entangled in this litigation and makes a prayer for awarding costs but looking to the overall circumstances and the steps taken by the petitioner particularly during last few weeks, this 5 Court is satisfied that interest of justice shall not be defeated if the petitioner is permitted to withdraw without any order as to costs. However, before parting with the matter this Court feels constrained to make a comment that the cognizance as taken by the learned Magistrate against the Sub-Divisional Officer and the Project Director of National Highway Authority of India on the complaint under Section 138 of the Negotiable Instruments Act by the order dated 18.06.2008 cannot be approved. It was definitely required of the learned Magistrate to have appropriately examined the cheque in question that was specifically drawn while indicating mortgage with Bank of Baroda and so also the cheque returning memo whereby the cheque was returned unpaid not for any reason of insufficiency of funds or of its exceeding arrangements but specifically on the ground that the cheque was crossed to Bank of Baroda. In the given fact situation, there was absolutely nothing on record to find if the said Sub-Divisional Officer and Project Director did anything calculated at avoiding payment of the money under the said cheque to the lawful payee. Although after this Court expressed reservations on the 6 legality and propriety of such proceedings under Section 138 of the Negotiable Instruments Act against the said Sub- Divisional Officer and the Project Director, the petitioner had been discreet in putting an end to those proceedings by moving application before the Magistrate and now for the petitioner withdrawing from this writ petition too, this Court would leave the matter at that only but with the observations that there was no justification whatsoever that any cognizance was taken against the said Sub-Divisional Officer and the Project Director under Section 138 Negotiable Instruments Act. The writ petition stands dismissed as withdrawn. No costs. (DINESH MAHESHWARI), J. Mohan/