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[Cites 12, Cited by 1]

Gujarat High Court

Sh. Pawan Jagannath Sharma S/O Sh. ... vs M/S Shriram Transport Finance Company ... on 3 March, 2021

Equivalent citations: AIRONLINE 2021 GUJ 972

Author: B.N. Karia

Bench: B.N. Karia

   R/CR.MA/3514/2021                          ORDER DATED: 03/03/2021




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
           R/CRIMINAL MISC.APPLICATION NO. 3514 of 2021
==========================================================
  SH. PAWAN JAGANNATH SHARMA S/O SH. JAGANNATH SHARMA
                          Versus
M/S SHRIRAM TRANSPORT FINANCE COMPANY LTD. THRO SANJAY R
                        SOLANKI
==========================================================
Appearance:
MR DEEPAK M SHAH(746) for the Applicant(s) No. 1
MR RAJAN D SHAH(3101) for the Applicant(s) No. 1
for the Respondent(s) No. 1
MR. MANAN MEHTA, APP for the Respondent(s) No. 2
==========================================================
 CORAM: HONOURABLE MR. JUSTICE B.N. KARIA
                   Date : 03/03/2021
                    ORAL ORDER

By way of present application, applicant has prayed to quash and set aside the impugned order dated 08.04.2019 passed by learned Senior Civil Judge & A.C.J.M., Surat summoning the applicant in the Criminal Complaint No.14874 of 2019 filed by the respondent No.1 and quash the Criminal Complaint No.14874 of 2019.

The brief facts of the case are as under:

That applicant had entered into a Loan Agreement No.TSLVAPI0000127 with respondent No.1 and as per the terms of the agreement, the respondent No.1 had disbursed a loan amounting Rs.8,50,000/­ to the applicant who had agreed Page 1 of 20 Downloaded on : Sat Sep 04 08:03:56 IST 2021 R/CR.MA/3514/2021 ORDER DATED: 03/03/2021 to repay the amount with interest to respondent No.1. As per say of the applicant he is a small time transporter and had used the amount to purchase vehicle Tata LPT 1613 Turbo FBT­Lp make which was allotted Registration No.GJ­15­UU­ 0218. That applicant had been regularly paying all the installments, however, due to unforeseen and inevitable circumstances, he was able to pay few installments only after the due date, nevertheless, there was no default in payment of installments on the part of applicant. That unfortunately, said vehicle bearing Registration No. GJ­15­UU­0218 met with a very serious accident and totally collapsed. That respondent No.1 without giving an opportunity to even raise a claim with the Insurance Company, took the vehicle/salvage from the garage itself; upon which the applicant went to the Branch Office of respondent No.1 at Vapi, Valsad and requested them to let the surveyor of the Insurance Company inspect the vehicle, so that the applicant would be able to repay the amount of loan to respondent No.1, but the officials of respondent No.1 told the applicant that they themselves would Page 2 of 20 Downloaded on : Sat Sep 04 08:03:56 IST 2021 R/CR.MA/3514/2021 ORDER DATED: 03/03/2021 take care of the Insurance formalities and recover his money by selling the salvage and that the applicant need not worry about the same. That insurance claimed by the applicant also failed due to unavailability of the salvage with the applicant. That on 16.03.2016, Shri. Subhash B. Patel, who is a guarantor in two other loan agreements informed the applicant that he had received copy of loan an Arbitral Award dated 28.01.2016 passed by learned Arbitrator Sh. Raguvir G. Chaudhary in Arbitration Case No.86 of 2015. Upon perusal of the said award, it transpired to the applicant that respondent no.1 had invoked the arbitration clause of the loan agreement without giving proper notice of the appointment of arbitrator to the applicant and learned arbitrator, without giving proper notice of the arbitral proceedings to the applicant passed an arbitral award dated 28.01.2016 in favour of respondent No.1 and against applicant fixing his liability to pay sum of Rs.46,24,297/­ along with future interest @ 12% p.a. from the date of institution of the claim petition to the date of realization of the amount. That being aggrieved by the passing Page 3 of 20 Downloaded on : Sat Sep 04 08:03:56 IST 2021 R/CR.MA/3514/2021 ORDER DATED: 03/03/2021 of the said arbitral award, applicant preferred an application bearing No. CMADC/421/16 under Section 34 of the Arbitration and Conciliation Act, 1996 read with Section 151 of the Code of Civil Procedure, 1908 for setting aside the arbitration award dated 28.01.2016 passed by Sh. Raghuvir G. Chaudhary, learned arbitrator before the City Civil Court at Ahmedabad, which is pending for adjudication at the City Civil and Sessions Court at Ahmedabad. That during pendency of the aforesaid application under Section 34 of the Arbitration and Conciliation Act, 1996 read with Section 151 of the Code of Civil Procedure, 1908, applicant was startled to receive legal Notice dated 24.02.2019 from counsel of respondent No.1 informing the applicant of the dishonour of the said cheque dated 28.12.2019 due to the bank account blocked, and seeking payment of a sum of Rs. 15 Lakhs from the applicant within 15 days from the receipt of the legal notice. That applicant got a reply dated 27.03.2019 served through his counsel to the counsel of respondent No.1 thereby clarifying that the aforesaid legal notice was totally baselless and Page 4 of 20 Downloaded on : Sat Sep 04 08:03:56 IST 2021 R/CR.MA/3514/2021 ORDER DATED: 03/03/2021 uncalled for, and that the applicant had neither handed over the said cheque to respondent No.1 nor had instructed them to present said cheque. That the respondent No.1 mislead the learned Court of Additional Sr. Civil Judge & A.C.J.M, Surat and got summoning order issued against the applicant. That being aggrieved by the aforesaid order dated 08.04.2019 passed by learned Court of Additional Senior Civil Judge & A.C.J.M., Surat summoning the applicant in the Criminal Complaint No.14874 of 2019 filed by the respondent No.1, applicant has preferred the present application for seeking quashing of the said order 08.04.2019 and the Criminal Complaint bearing No.14874 of 2019.
Heard learned advocate for the applicant.
It is submitted by learned advocate for the applicant that vide order dated 08.04.2019 passed by learned Court of Additional Senior Civil Judge & A.C.J.M., Surat summoning the applicant in the Criminal Complaint No.14874 of 2019 filed by respondent No.1 is illegal, improper and incorrect and gross abuse of the process of law. That having received the Page 5 of 20 Downloaded on : Sat Sep 04 08:03:56 IST 2021 R/CR.MA/3514/2021 ORDER DATED: 03/03/2021 reply dated 27.03.2019 to the aforesaid legal notice dated 24.02.2019, respondent No.1 mislead the learned Court of Additional Senior Civil Judge & A.C.J.M., Surat and got summoning order issued against the applicant. It is further submitted that when the issue as to liability of the applicant towards the respondent No.1 is still pending for adjudication, there is no legally enforceable debt towards respondent No.1 and as such there was no reason for the applicant to handover the impugned cheque or instruct the respondent No.1 to present the impugned cheque towards part payment. That learned Trial Court has arbitrarily and erroneously exercised its jurisdiction vested with it by summoning the applicant in the said criminal complaint No.14874 of 2019. That learned Trial Court erred in issuing summons to the applicant despite the fact that no copy of the loan agreement was filed by the respondent No.1 alongwith the complaint case. That applicant had neither handed over any chque bearing number 302552 dated 28.12.2018 on such date; nor given any instructions to respondent No.1 to present the said cheque in their bank Page 6 of 20 Downloaded on : Sat Sep 04 08:03:56 IST 2021 R/CR.MA/3514/2021 ORDER DATED: 03/03/2021 account. That applicant had also not filled in any particulars of the said cheque. That said blank cheque was handed over by the applicant to respondent no.1 only as a security at the time of execution of the loan agreement No. TSLVAPI0000127 and not on 28.12.2018. That there is no probability/likelihood of the applicant issuing a cheque towards any payment/ part­ payment in favour of respondent No.1 during pendency of the above said application under Section 34 of the Arbitration and Conciliation Act, 1996 and the aforesaid execution petitions.

That impugned cheque was no more acceptable in the banks and is an old cheque which was handed over by the applicant to respondent No.1 only as a security. The applicant has subsequently even obtained new cheque books which comply the bank norms and rules, and there is no reason why the applicant would issue an old cheque and that too of a closed account to respondent No.1. That dispute between respondent no.1 and the applicant is purely of civil nature, but the respondent had got the criminal Complaint No.14874 of 2019 initiated against the applicant only to give a criminal colour to Page 7 of 20 Downloaded on : Sat Sep 04 08:03:56 IST 2021 R/CR.MA/3514/2021 ORDER DATED: 03/03/2021 the transactions between the applicant and respondent No.1 and to create pressure on the applicant to pay the amount mentioned in the said cheque. That there never arose any reason, instance or cause for the applicant to issue the impugned cheque in favour of respondent No.1. That there is no legally recoverable debt against which the applicant would have issued the impugned cheque to respondent No.1. That only dispute of payment which exists between the applicant and respondent no.1 is already pending for adjudication in the City Civil Court at Ahmedabad and as such applicant had no reason to issue the aforesaid cheque to respondent No.1. That learned Trial Court has acted in the exercise of its jurisdiction with material irregularity. Hence, it is requested by learned advocate for the applicant to allow present application.

As the issue involved in this petition of issuing cheque by the applicant for security purpose is squarely covered by the Hon'ble Apex Court in various cases, this Court deems it fit not to issue notice to the respondents or to admit this petition, decided it to dispose of finally at this stage of admission itself.

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R/CR.MA/3514/2021 ORDER DATED: 03/03/2021 This Court would like to refer the judgment of Hon'ble Apex Court in case of "Sampelly Satyanarayana Rao v.

Indian Renewable Energy Development Agency Limited"

reported in "2016 Law Suit (SC) 891", wherein Hon'ble Apex Court has questioned for consideration was whether in the facts of the present case, the dishonour of a post­dated cheque given for repayment of loan installment which is also described as "security" in the loan agreement is covered by Section 138 of the Negotiable Instruments Act, 1881. Hon'ble Apex Court has referred the case of "Indus Airways Private Limited versus Magnum Aviation Private Limited reported in 2014 12 SCC 539, wherein a contrary view was taken in the similar facts of the case holding that while the purchaser may be liable for breach of the contract, when a contract provides that the purchaser has to pay in advance and cheque towards advance payment is dishonoured, it will not give rise to criminal liability under Section 138 of the Act. Issuance of cheque towards advance payment could not be considered as discharge of any subsisting liability.
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R/CR.MA/3514/2021 ORDER DATED: 03/03/2021 The Hon'ble Supreme Court in case of Sampelly Satyanarayana Rao (Supra) has observed as under:
10. We have given due consideration to the submission advanced on behalf of the appellant as well as the observations of this Court in Indus Airways (supra) with reference to the explanation to Section 138 of the Act and the expression "for discharge of any debt or other liability" occurring in Section 138 of the Act. We are of the view that the question whether a post­dated cheque is for "discharge of debt or liability" depends on the nature of the transaction. If on the date of the cheque liability or debt exists or the amount has become legally recoverable, the Section is attracted and not otherwise.
11. Reference to the facts of the present case clearly shows that though the word "security" is used in clause 3.1(iii) of the agreement, the said expression refers to the cheques being towards repayment of installments. The repayment becomes due under the agreement, the moment the loan is advanced and the installment falls due. It is undisputed that the loan was duly disbursed on 28th February, 2002 which was prior to the date of the cheques. Once the loan was disbursed and installments have fallen due on the date of the cheque as per the agreement, dishonour of such cheques would fall under Section 138 of the Act. The cheques undoubtedly represent the outstanding liability.
12. Judgment in Indus Airways (supra) is clearly distinguishable.

As already noted, it was held therein that liability arising out of claim for breach of contract under Section 138, which arises on account of dishonour of cheque issued was not by itself at par with criminal liability towards discharge of acknowledged and admitted debt under a loan transaction. Dishonour of cheque issued for Page 10 of 20 Downloaded on : Sat Sep 04 08:03:56 IST 2021 R/CR.MA/3514/2021 ORDER DATED: 03/03/2021 discharge of later liability is clearly covered by the statute in question. Admittedly, on the date of the cheque there was a debt/liability in presenti in terms of the loan agreement, as against the case of Indus Airways (supra) where the purchase order had been cancelled and cheque issued towards advance payment for the purchase order was dishonoured. In that case, it was found that the cheque had not been issued for discharge of liability but as advance for the purchase order which was cancelled. Keeping in mind this fine but real distinction, the said judgment cannot be applied to a case of present nature where the cheque was for repayment of loan installment which had fallen due though such deposit of cheques towards repayment of installments was also described as "security" in the loan agreement. In applying the judgment in Indus Airways (supra), one cannot lose sight of the difference between a transaction of purchase order which is cancelled and that of a loan transaction where loan has actually been advanced and its repayment is due on the date of the cheque.

13. Crucial question to determine applicability of Section 138 of the Act is whether the cheque represents discharge of existing enforceable debt or liability or whether it represents advance payment without there being subsisting debt or liability. While approving the views of different High Courts noted earlier, this is the underlying principle as can be discerned from discussion of the said cases in the judgment of this Court.

14. In Balaji Seafoods (supra), the High Court noted that the cheque was not handed over with the intention of discharging the subsisting liability or debt. There is, thus, no similarity in the facts of that case simply because in that case also loan was advanced. It was noticed specifically therein - as was the admitted case of the parties Page 11 of 20 Downloaded on : Sat Sep 04 08:03:56 IST 2021 R/CR.MA/3514/2021 ORDER DATED: 03/03/2021

- that the cheque was issued as "security" for the advance and was not intended to be in discharge of the liability, as in the present case.

15. In HMT Watches Ltd. versus M.A. Abida[8], relied upon on behalf of the respondent, this Court dealt with the contention that the proceedings under Section 138 were liable to be quashed as the cheques were given as "security" as per defence of the accused. Negativing the contention, this Court held :­ "10. Having heard the learned counsel for the parties, we are of the view that the accused (Respondent 1) challenged the proceedings of criminal complaint cases before the High Court, taking factual defences. Whether the cheques were given as security or not, or whether there was outstanding liability or not is a question of fact which could have been determined only by the trial court after recording evidence of the parties. In our opinion, the High Court should not have expressed its view on the disputed questions of fact in a petition under Seciton 482 of the Code of Criminal Procedure, to come to a conclusion that the offence is not made out. The High Court has erred in law in going into the factual aspects of the matter which were not admitted between the parties. The High Court further erred in observing that Section 138(b) of the NI Act stood uncomplied with, even though Respondent 1 (accused) had admitted that he replied to the notice issued by the complainant. Also, the fact, as to whether the signatory of demand notice was authorised by the complainant company or not, could not have been examined by the High Court in its jurisdiction under Section 482 of the Code of Criminal Procedure when such plea was controverted by the complainant before it.

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R/CR.MA/3514/2021 ORDER DATED: 03/03/2021

11. In Suryalakshmi Cotton Mills Ltd. v. Rajvir Industries Ltd. [(2008) 13 SCC 678], this Court has made the following observations explaining the parameters of jurisdiction of the High Court in exercising its jurisdiction under Section 482 of the Code of Criminal Procedure: (SCC pp. 685­87, paras 17 &

22) "17. The parameters of jurisdiction of the High Court in exercising its jurisdiction under Section 482 of the Code of Criminal Procedure is now well settled. Although it is of wide amplitude, a great deal of caution is also required in its exercise. What is required is application of the well­ known legal principles involved in the matter.

22. Ordinarily, a defence of an accused although appears to be plausible should not be taken into consideration for exercise of the said jurisdiction. Yet again, the High Court at that stage would not ordinarily enter into a disputed question of fact. It, however, does not mean that documents of unimpeachable character should not be taken into consideration at any cost for the purpose of finding out as to whether continuance of the criminal proceedings would amount to an abuse of process of court or that the complaint petition is filed for causing mere harassment to the accused. While we are not oblivious of the fact that although a large number of disputes should ordinarily be determined only by the civil courts, but criminal cases are filed only for achieving the ultimate goal, namely, to force the accused to pay the amount due to the complainant immediately.

The courts on the one hand should not encourage such a practice; but, on the other, cannot also travel beyond its Page 13 of 20 Downloaded on : Sat Sep 04 08:03:56 IST 2021 R/CR.MA/3514/2021 ORDER DATED: 03/03/2021 jurisdiction to interfere with the proceeding which is otherwise genuine. The courts cannot also lose sight of the fact that in certain matters, both civil proceedings and criminal proceedings would be maintainable."

This court in case of "Deepak Shyamsunder Agrawal v.

State of Gujarat and another" reported in 2017 Law Suit (Guj) 343, in para 15, has held as under:

"Considering the above stated legal settled principles of law, while dealing with a quashing petition, the Court has ordinarily to proceed with all the averments in the complaint, defence of the accused cannot be considered at this stage. The Court considering the prayer for quashing, does not adjudicate upon the disputed questions of fact. Therefore, the question has to be answered in favour of the respondent no.2 and against the applicant. Accordingly, this court did not find any merits in this petition, thereofre, the same is dismissed. Ad interim relief stands vacated. Rule nisi discharged with no order as to costs."

This court in case of Patel Bachubhai Ramjbhai owner/partner of Gopi Dairy Pvt v. Parsottambbai P Rami and two others reported in 2016 Law Suit (Guj) 1372, has observed as under:

"The issue raised by the learned advocate Mr. MIG Mansuri that the cheque in dispute was never signed by the petitioner and it was Page 14 of 20 Downloaded on : Sat Sep 04 08:03:56 IST 2021 R/CR.MA/3514/2021 ORDER DATED: 03/03/2021 possessed by the respondent having no signature of the petitioner as it was a blank cheque, and therefore, the complaint itself is not maintainable in the eyes of law. Raising dispute of blank cheque without signature of the petitioner, allegedly in the possession of both the respondents is a question of fact which requires evidence before the trial Court. At this juncture, this Court cannot come to the conclusion that the cheque in question was not signed by the petitioner and was illegally within the possession of both the respondents. On this issue, learned advocate Mr. Mansuri has placed reliance upon decision of this Court rendered in Criminal Misc. Application No. 968 of 2014 and allied cases wherein it was evident from the facts that the cheque in dispute was issued by the Managing Director & Vice President of the Company was a blank signed cheque in favour of the complainant­firm as security. Ultimately, the complainant thought fit to fill up the blank signed cheque which was drawn by the M.D on behalf of the Company as security. These facts are revealed from para 2.4 to 2.7 of the said decision. Here, this is not a position, as argued by the learned advocate for the petitioner that disputed cheque was a blank signed cheque and was illegally in possession of the respondents or misused by them. The question requires consideration by recording evidence of the parties, and therefore, judgment relied upon by learned advocate Mr. Mansuri would not be applicable at this stage. Hence, on all counts, petition requires to be rejected, holding that prosecution can be based upon second or successive dishonour of the cheque, which is also permissible so long as it satisfies the requirements stipulated under the provisions of Section 138 of the Negotiable Instruments Act"

In a similar fact, this Court in case of "Sunilbhai Dhirubhai Patel and another v. State of Gujarat and others"

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R/CR.MA/3514/2021 ORDER DATED: 03/03/2021 reported in 2017 Law Suit (Guj.) 1732 has observed as under:

11. In the present case, as stated herein above, it is an admitted position that the accused were aware that they are paying the post­ dated cheques to the complainant and those amounts which he had already paid to the original land owner, which in my opinion, would be debt / liability in praesenti. The petitioner firm was aware that if the cheques are dishonoured, a right was given to the holder in due course to take all legal recourses available under the various proceedings. Since the complainant is a Banakhat holder would be entitled to file civil suit for specific performance / damages etc., that does not mean that he cannot file any complaint under Section 138 of the Act, when the case would fall under Explanation to Section 138 of the Act. Even otherwise, the Hon'ble Supreme Court in the case of HMT Watches Limited v. M. A. Abida and another, (2015) 11 SCC 776 while dealing with the provisions of Sections 139 and 140, has held that presumption would be in favour of holder and the defences which have been raised in the present petition would not be available if the proceedings are initiated under Section 138 of the Act.

This Court in case of Chintan Jayant Manjaratkar v.

Rashidkhan Rasulkhan Pathan and others" reported in 2019 Law Suit (Guj) 298, has held as under:

12. It is settled law that for considering the petition under Section 482 of the Code, it is necessary to consider as to whether the allegations in the complaint prima facie make out a case or not and Page 16 of 20 Downloaded on : Sat Sep 04 08:03:56 IST 2021 R/CR.MA/3514/2021 ORDER DATED: 03/03/2021 the Court is not to scrutinize the allegations for the purpose of deciding whether such allegations are likely to be upheld in trial. It is also well settled that though the High Court possesses inherent powers under Section 482 of the Code, these powers are meant to do real and substantial justice, for the administration of which alone it exists or to prevent abuse of the process of the court. The Supreme Court, time and again, has observed that extraordinary power should be exercised sparingly and with great care and caution. The High Court would be justified in exercising the said power when it is imperative to exercise the same in order to prevent injustice.
13. The High Court, in the exercise of its jurisdiction under Section 482 of the Code of Criminal Procedure, is required to examine whether the averments in the complaint constitute the ingredients necessary for an offence alleged under the Penal Code. If the averments taken on their face do not constitute the ingredients necessary for the offence, the criminal proceedings may be quashed under Section 482. A criminal proceeding can be quashed where the allegations made in the complaint do not disclose the commission of an offence under the Penal Code. The complaint must be examined as a whole, without evaluating the merits of the allegations. Though the law does not require that the complaint reproduce the legal ingredients of the offence verbatim, the complaint must contain the basic facts necessary for making out an offence under the Penal Code.
14. A court exercising its inherent jurisdiction must examine if on their face, the averments made in the complaint constitute the ingredients necessary for the offence.
16. Considering the facts and circumstances of the case, it is clearly found that the applicant and his father issued different Page 17 of 20 Downloaded on : Sat Sep 04 08:03:56 IST 2021 R/CR.MA/3514/2021 ORDER DATED: 03/03/2021 cheques to the complainant and accordingly, the complainant lodged different complaints and he has also initiated civil proceedings. This shows that there is prima facie liability of payment on the part of the applicant. In view of the material placed in the matter, it clearly appears that this is not a fit case wherein inherent powers under Section 482 of the Code of Criminal Procedure could be exercised.

Considering the facts of the present case, question of issuance of cheque towards security purpose or not can only be considered after recording evidence by the prosecution before the learned Trial Court. The dispute of legal debt of the complainant would be also a question of facts, which can be considered by the trial court after recording evidence and examination/cross examination of the complainant. Another question of failing to prove by the complainant not making payment of outstanding amount by the accused would be covered as disputed question of facts which can only be proved or disproved after recording evidence. The contents of the issues raised by learned advocate for the applicant may be considered by the trial court while recording evidence of the either side.

All these disputed questions of facts or questions cannot Page 18 of 20 Downloaded on : Sat Sep 04 08:03:56 IST 2021 R/CR.MA/3514/2021 ORDER DATED: 03/03/2021 be considered in a petition under Section 482 of the Cr.P.C.

Issuing cheque by way of security purpose may be decided after giving an opportunity to the accused person before the trial Court. The applicant/accused has not denied in his reply through advocate that the cheque was not signed by him and given to the complainant. Here, the factual questions raised by the applicant are in a nature of defence to the complaint under Section 138(a) of the Negotiable Instruments Act. This is a case wherein the disputed questions of fact are involved. Under these circumstances, when a disputed question of fact is involved and there is prima facie material showing that the cheques were issued by the accused to the complainant with his signature and there was monetary transaction between them, then in such case, inherent powers under Section 482 of the Code of Criminal Procedure cannot be exercised.

This court is of the considered view that the High Court should not have interfered with the cognizance of the complaints having been taken by the trial court and High Court should not discharge the accused from his liability at the Page 19 of 20 Downloaded on : Sat Sep 04 08:03:56 IST 2021 R/CR.MA/3514/2021 ORDER DATED: 03/03/2021 threshold. Unless the parties are given opportunity to lead evidence, it is not possible to come to a definite conclusion as to what purpose the cheque under question was issued.

Admittedly, cheque was under the signature of the present applicant given to the complainant. The purpose of alleged security, as argued by learned advocate for the applicant, can be decided before the trial Court on recording evidence.

Therefore, present application is dismissed at the stage of admission without issuing any notice to the other side.

As a parting note, it needs to mention here that this Court has not gone into the merits of the matter and only gone into the aspect of its entertainibility for quashing the impugned complaint qua the applicant herein, and therefore, the applicant would at liberty to raise all the available contentions before the trial Court, which shall be gone into and dealt with by the concerned court on merits and in accordance with law.

(B.N. KARIA, J) SUYASH Page 20 of 20 Downloaded on : Sat Sep 04 08:03:56 IST 2021