Gujarat High Court
Nirmalkumar M. Jain & vs The State Of Gujarat & on 11 January, 2013
Author: R.D.Kothari
Bench: R.D.Kothari
NIRMALKUMAR M. JAINV/STHE STATE OF GUJARAT R/CR.MA/3547/2006 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION NO. 3547 of 2006 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE R.D.KOTHARI ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================================ NIRMALKUMAR M. JAIN & 1....Applicant(s) Versus THE STATE OF GUJARAT & 2....Respondent(s) ================================================================ Appearance: MR BB NAIK, ADVOCATE for the Applicants MR PARTHIV BHATT for the Applicants MR KL PANDYA, ADDL. PUBLIC PROSECUTOR for the Respondent No. 1 MR ZUBIN F BHARDA, ADVOCATE for the Respondent(s) No. 2 ================================================================ CORAM: HONOURABLE MR.JUSTICE R.D.KOTHARI Date : 11/01/2013 ORAL JUDGMENT
Story as to transaction that led to issuance of cheque is somewhat odd and strange. The applicants claimed to be in transport business. The original complainant is, - or at least at the relevant time was, driver of the applicants. The applicants wanted to sell one of their trucks, so they alleged to have asked or persuaded the complainant / their driver, to purchase the said truck. The complainant agreed. The price agreed was Rs.2,25,000/-. The further case, - as the story goes is, the complainant / driver in order to pay the price to the applicants had sold the jeep which was owned by him for Rs.1,10,000/-. The complainant had said to have paid Rs.1,25,000/- to the applicants. The remaining Rs.1,00,000/- was to be paid after verifying the record from the RTO. Upon verifying the record, the complainant had alleged to have come to know about endorsement made in RTO record, on account of truck being hypothicated to one finance company. This had it is alleged led the complainant to convey his denial to purchase the truck. In consequence, the complainant demanded back his Rs.1,25,000/-. The cheques in question are said to be issued by the applicants in pursuance to that. It is alleged that the applicants have issued four cheques.
The cheques presented by the complainant / driver to the Bank were bounced. A statutory notice was given on 1.4.1997. The details of cheques are given in tabular form in the impugned notice, which reads thus :
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Bank s Name Cheque No. Date ====================================== Vijaya Bank, 503943 30.11.1996 Maninagar Branch Illegible Illegible 503947 17.3.1997 503948 17.3.1997
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Note : Illegible is mentioned in notice itself.
Then, in next paragraph, the complainant alleges that the above cheques were presented before the Indian Overseas Bank, Geeta Mandir, Ahmedabad Branch on 18.3.1997. He says that Cheque No.503943 was presented on 10.12.1996. It was returned by the Bank on 20.12.1996 with endorsement of returned for insufficiency of funds .
The applicants herein, inter-alia, pray to quash the Criminal Case No.112 of 1997 (Annexure-B).
5. At the time of hearing, learned advocate Shri Parthiv Bhatt has drawn attention to a decision of this Court in the case of Yakub Musabhai Shafi v. Lalit H. Gandhi, Proprietor Nakoda Auto Finance & Anr., 2012 (2) GLH 9. In that case also, transaction as to the sale of truck had taken place. The claim was that of Rs.4,25,000/-. However, in the notice issued under Section 138 of the N.I.Act, no amount was mentioned in it. Upholding the challenge to the validity of the notice, the Court was pleased to quash the notice and also the criminal case initiated on the basis of the said notice.
6. Shri Bhatt has also placed reliance on a decision of the Supreme Court in the case of Suman Sethi v. Ajay K. Churiwal & Anr., AIR 2000 SC 828 wherein, inter-alia, it was held that legal notice under Section 138 of the N.I.Act is bad if it fails to specify the amount due therein.
7. The decision in the case of Suman Sethi (supra) was considered in the case of K.R.Indira v. Dr.G. Adinarayana, AIR 2003 SC 4689. In this case also as herein four cheques were issued by the accused. Therein, two cheques were in the name of husband and two cheques were in the name of wife. All the cheques were bounced. The notices were given and criminal cases were filed on the basis of cheque returned and notice given in pursuance to it. The learned Magistrate was pleased to dismiss all the criminal cases. In appeal, the High Court was pleased to dismiss three cases. However, it allowed one of the case of the complainant. The complainant had filed an appeal before the Supreme Court. The Supreme Court, while upholding the dismissal of the complainant s cases, had held as under :
11. Strong reliance was placed by learned Counsel for the appellants in Suman Sethi's case (supra) to contend that if the indication in the notice of other amounts than that covered by the cheque issued, does not as held by this Court invalidate the notice, there is no reason as to why a consolidated notice for two complainants cannot be issued. The extreme plea as is sought to be raised in this case based upon Suman Sethi's case (supra) is clearly untenable. Though no formal notice is prescribed in the provision, the statutory provision indicates in unmistakable terms as to what should be clearly indicated in the notice and what manner of demand it should make. In Suman Sethi's case (supra) on considering the contents of the notice, it was observed that there was specific demand in respect of the amount covered by the cheque and the fact that certain additional demands incidental to it, in the form of expenses incurred for clearance and notice charges were also made did not vitiate the notice. In a given case if the consolidated notice is found to provide sufficient information envisaged by the statutory provision and there was a specific demand for the payment of the sum covered by the cheque dishonoured, mere fact that it was a consolidated notice, and/or that further demands in addition to the statutorily envisaged demand was also found to have been made may not invalidate the same. This position could not be disputed by learned Counsel for the respondent.
However, according to the respondent, the notice in question is not separable in that way and that there was no specific demand made for payment of the amount covered by the cheque. We have perused the contents of the notice. Significantly, not only the cheque amounts were different from the alleged loan amounts but the demand was made not of the cheque amounts but only the loan amount as though it is a demand for the loan amount and not the demand for payment of the cheque amount; nor could it be said that it was a demand for payment of the cheque amount and in addition thereto made further demands as well. What is necessary is making of a demand for the amount covered by the bounced cheque which is conspicuously absent in the notice issued in this case. The notice in question is imperfect in this case not because it had any further or additional claims as well but it did not specifically contain any demand for the payment of the cheque amount, the non-compliance with such a demand only being the incriminating circumstance which expose the drawer for being proceeded against under Section 138 of the Act. That being the position, the ultimate conclusion arrived at by the trial Court and the High Court do not call for interference in these appeals, though for different reasons indicated by us. The appeals are, accordingly dismissed. (emphasis supplied)
8. In the present case, in the statutory notice the complainant has not stated that of which amount each of the four cheques were issued by the accused. In other words, the amount is not stated by the complainant. As it would appear from above stated tabular form that all the details of cheques except the amount and qua one cheque neither date nor number nor even the amount is given. A general statement is made in Para.1 of the complaint, that transaction was of Rs.1,25,000/-. This general statement, without any context, can hardly be said to be sufficient.
9. Learned advocate Shri Zubin Bharda for the respondent complainant, at the time of hearing, has strongly urged that the amount, viz. Rs.1,25,000/- does appear in the statutory notice. So, apart from the fact that amount due would be within the knowledge of the accused - irrespective of the notice - occurrence of figure of Rs.1,25,000/- in the notice is sufficient one. It was also submitted by Shri Bharda that in Suman Sethi s case, it is clearly held that consolidate notice when provides sufficient information is not invalid only on that ground.
10. This submission of Shri Bharda - submission of convenience is not possible to accept. A bare reading of the statutory notice would show that it does not give the required details about cheque bounced particularly about the amount of which each of the cheques were issued. This would be bad and illegal in view of above referred binding decisions. It may be stated that the case of complainant respondent is worse as the complainant in the notice itself alleges that the applicants had taken back cheque No.503943 by giving false promise to the complainant that he would pay the amount in cash. Thus, the original cheque alleged to have been bounced, is taken back by the applicants.
11. The applicants have filed the present application invoking the powers of the Court under Section 482 of the Cr.P.C. Recently, in case of Asmathunnisa v. State of A.P., represented by the Public Prosecutor, High Court of A.P. & Anr., AIR 2011 SC 1905, the scope and ambit of power under Section 482 of the Cr.P.C. was considered by the Supreme Court. In that case, the complaint under the Atrocity Act came to be lodged against the appellant. The appellant had filed an application under Section 482 of Cr.P.C. before the Supreme Court which came to be dismissed. The Supreme Court, while allowing the application on the scope of Section 482 of the Cr.P.C., has held in Para.14 as under :
14. The law has been crystallized more than half a century ago in the case of R.P. Kapur v. State of Punjab AIR 1960 SC 866 wherein this Court has summarized some categories of cases where inherent power can and should be exercised to quash the proceedings. This Court summarized the following three broad categories where the High Court would be justified in exercise of its powers under section 482:
(i) where it manifestly appears that there is a legal bar against the institution or continuance of the proceedings;
(ii) where the allegations in the first information report or complaint taken at their face value and accepted in their entirety do not constitute the offence alleged;
(iii) where the allegations constitute an offence but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.
11.1 It has also referred and relied on the decision in the case of M. Mohan v. The State., reported in AIR 2011 SC 1238 and held in Para.27 as under :
27. In a recent decision in M. Mohan v. The State 2011 (3) SCALE 78 this Court again had an occasion to consider the case of similar nature and this court held that if all the facts mentioned in the complaint are accepted as correct in its entirety and even then the complaint does not disclose the essential ingredients of an offence, in such a case the High Court should ensure that such frivolous prosecutions are quashed under its inherent powers under section 482 of the Cr.P.C.
12. Shri Bharda, learned advocate for the respondent has rightly not disputed the exercise of power under Section 482 of the Cr.P.C. in the typical facts and circumstances of the present case. So far as the power under Section 482 is concerned, the present case is covered up by Asmathunnisa s case (supra). So far as validity of notice is concerned, it is bad and illegal in view of above referred cases.
13. In view of above, the present application deserves to be allowed and the same is allowed. The impugned complaint being Criminal Case No.1112 of 1997 pending in the Court of learned Metropolitan Magistrate, Court No.15, Ahmedabad filed by respondent No.2 herein original complainant for the offence punishable u/s.138 of the Negotiable Instruments Act,1881 as well as the order passed by learned Magistrate directing to issue summons against the applicants herein original accused are hereby quashed and set aside. Rule is made absolute accordingly.
(R.D.KOTHARI, J.) vipul Page 9 of 9