Gujarat High Court
Arvindkumar Dwarkadas Jani vs State Of Gujarat on 15 September, 2022
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
R/SCR.A/2744/2017 ORDER DATED: 15/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 2744 of 2017
==========================================================
ARVINDKUMAR DWARKADAS JANI
Versus
STATE OF GUJARAT & 1 other(s)
==========================================================
Appearance:
MR HIMANSHU C DESAI(6832) for the Applicant(s) No. 1
MR RR MARSHALL, SENIOR ADVOCATE with MR MRUGEN K
PUROHIT(1224) for the Respondent(s) No. 2
MS MAITHILI MEHTA, APP for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 15/09/2022
ORAL ORDER
1. By way of this writ-application under Article 226 and 227 of the Constitution of India read with Section 482 of the Criminal Procedure Code, 1973 the writ-applicant - accused (for short 'writ-applicant) has prayed for the following reliefs :-
"(A) This Hon'ble Court may be pleased to admit and allow this Special Criminal Application by quashing and setting aside the criminal case no. 30323 of 2014 before 3rd Additional Civil Judge and Chief Judicial Magistrate, Vadodara, qua Ex.10 order date 25/03/2015 the petitioner;
(B) This Hon'ble Court may be pleased to quash and set aside the order below Ex .10 in the criminal complain no.Page 1 of 47 Downloaded on : Sun Dec 25 01:54:12 IST 2022
R/SCR.A/2744/2017 ORDER DATED: 15/09/2022 30323 of 2014 passed by the Trial Court Vadodara. (C) This Hon'ble Court may be pleased to quash and set aside the order in the criminal revision application no. 103 of 2015 passed by the Additional Sessions Judge, Vadodara oder date 24/03/ 2017.
(D) pending hearing, admission and final disposal of this application, this Hon'ble Court may be pleased to stay any other and further proceedings in pursuance of the criminal case no. 30323 of 2014 before 3rd Additional Civil Judge and Chief Judicial Magistrate, Vadodara, qua order date 25/03/2015 the petitioner;
(E) This Hon'ble Court may be pleased to suspend the order of Additional Sessions Judge in Criminal Revision Application No. 103 of 2015 up to the final disposal of this petition and not to deposit rupees 25,000/- as cost.
(F) This Hon'ble Court may be pleased to pass such other and further relief(s) as the facts and circumstances of the present case may require."
2. Brief facts arising for filing of the present writ- application are stated thus :-
2.1 The respondent No.2 filed a complaint before the 3 rd Page 2 of 47 Downloaded on : Sun Dec 25 01:54:12 IST 2022 R/SCR.A/2744/2017 ORDER DATED: 15/09/2022 Additional Chief Judicial Magistrate, Vadodara under Section 138 of the Negotiable Instruments Act, 1881 against the writ-
applicant and others which came to be registered as Criminal Case No.30323 of 2014 by order dated 11.7.2014. The said complaint was filed before the learned Magistrate on 10.7.2014 and alongwith the said complaint verification (page-61) and affidavit (page-64) were also filed and considering the same the learned Magistrate by order dated 11.7.2014 issued process to the present writ-applicant (original accused) which is duly produced at page-60. After issuance of process and during the pendency of the aforesaid criminal case the writ-applicant filed an application below Ex.10 on 20.11.2014 requesting the trial Court to make reference to the Hon'ble High Court as per the provisions of Section 395 of the Criminal Procedure Code, 1973 in respect of validity/operation of Sections 251, 252 and 284 of the said Act.
2.2 The said application below Ex.10 came to be rejected by the trial Court by judgment and order dated 25.3.2015 having Page 3 of 47 Downloaded on : Sun Dec 25 01:54:12 IST 2022 R/SCR.A/2744/2017 ORDER DATED: 15/09/2022 come to a conclusion that there was no question of law with regard to invalidity and in-operationality of Sections 251, 252 and 254 of the Criminal Procedure Code, 1973. 2.3 The said order below Ex.10 dated 25.3.2015 was carried in revision by the writ-applicant by preferring Criminal Revision Application No.103 of 2015, therefore the learned 3 rd Additional Sessions Judge, Vadodara after hearing both the parties by order dated 24.3.2017 rejected the said Criminal Revision Application No.103 of 2015.
2.4 Being aggrieved and dissatisfied by the impugned order passed by the learned Magistrate dated 25.3.2015 and the order passed by the revisional authority dated 28.4.2015 the writ-applicant herein has preferred the present writ-application challenging the said order and has prayed for quashing and setting aside the Criminal Case No.30323 of 2014.
3. Heard Mr. Himanshu Desai, the learned advocate appearing for the writ-applicant and Mr. R. R. Marshall, the Page 4 of 47 Downloaded on : Sun Dec 25 01:54:12 IST 2022 R/SCR.A/2744/2017 ORDER DATED: 15/09/2022 learned Senior Counsel assisted by Mr. Mrugen Purohit, the learned advocate appearing for the respondent No.2.
4. Mr. Himanshu Desai, the learned advocate appearing for the writ-applicant submitted that as per the provisions of Section 143 of the Negotiable Instruments Act, 1881 the complaint is to be tried under Sections 262 to 265 of the Criminal Procedure Code, 1973 and the Court is required to undertake summary trial. Mr. Desai, the learned advocate submitted that the Court below has adopted the summons trial though the process should have been issued under Section 206 of the Criminal Procedure Code. However in the facts of the present case, the process is issued under Section 204.
In view of above, the procedure adopted by the trial Court is erroneous.
4.1 Mr. Desai, the learned advocate submitted that the custody of the cheque in question is not with the complainant. However, the same is with an escrow agent viz. Mr. Page 5 of 47 Downloaded on : Sun Dec 25 01:54:12 IST 2022 R/SCR.A/2744/2017 ORDER DATED: 15/09/2022 Bindukumar Shah. The cheque was deposited before the escrow agent for fulfillment of terms of the MOU dated 20.10.2013. It is also submitted that the writ-applicant informed the respondent No.2 by letter dated 9-10 May, 2014 to fulfill the condition of MOU and on fulfillment of the condition of the MOU the writ-applicant promised to pay the balance amount. It was submitted that the complaint at the instance of the respondent No.2 is not maintainable in view of Rules of Memorandum of Association and Rules and Regulations, Baroda Cricket Association, duly produced at page 155. 4.2 Mr. Desai, the learned advocate submitted that in view of the aforesaid submissions the impugned order passed by the learned Chief Judicial Magistrate, Vadodara in Criminal Case No.30323 of 2014 below Ex.10 dated 25.3.2015 and the order passed in Criminal Revision Application No.103 of 2015 passed by the Additional Sessions Judge, Vadodara by order date 24.03.2017 confirming the order passed by the learned Magistrate is required to be be quashed and set aside. Page 6 of 47 Downloaded on : Sun Dec 25 01:54:12 IST 2022
R/SCR.A/2744/2017 ORDER DATED: 15/09/2022 4.3 Mr. Desai, the learned advocate has placed reliance on the judgment of the Hon'ble Supreme Court in J. V. Baharuni Vs. State of Gujarat, reported in (2014) 10 SCC 494.
5. Heard Mr. R. R. Marshall, the learned Senior Counsel assisted by Mr. Mrugen Purohit, the learned advocate appearing for the respondent No.2. Mr. Marshall, the learned Senior Counsel submitted that the orders passed below Ex.10 by the learned Chief Judicial Magistrate, Vadodara in Criminal Case No.30323 of 2014 dated 25.3.2015 and the order passed in Criminal Revision Application No.103 of 2015 passed by the Additional Sessions Judge, Vadodara by order date 24.03.2017 are just and proper.
5.1 Mr. Marshall, the learned Senior Counsel referring to Section 395 of the Code submitted that the aforesaid section will apply only when the question is with regard to validity of the Act, Ordinance or Regulation or any provisions contained in the Act, Ordinance or Regulation being void. The Court is Page 7 of 47 Downloaded on : Sun Dec 25 01:54:12 IST 2022 R/SCR.A/2744/2017 ORDER DATED: 15/09/2022 of the opinion that such Act, Ordinance or Regulation or provisions is invalid or in-operative, then in that case, the same is required to be referred to the High Court under Section 395(1) and (2) of the Code and the same would only be applicable, if it satisfies the condition mentioned therein. Section 395(2) of the Code will apply when the Sessions Court or the Metropolitan Magistrate deems it fit and it is found that any question of law arising in the hearing of the case is required to be referred to the High Court where the decision under the provision of Section 395 (1) of the Code is applied. Referring to the aforesaid provisions Mr. Marshall, the learned Senior Counsel submitted that the discretion is vested with the Court, if the Court deems it fit to make reference. 5.2 Mr. Marshall, the learned Senior Counsel submitted that the Magistrate by order dated 10.7.2014 issued process to the writ-applicant and pursuant to the said order the writ-applicant appeared and participated in the complaint proceedings. The said order issuing process dated 10.7.2014 was never Page 8 of 47 Downloaded on : Sun Dec 25 01:54:12 IST 2022 R/SCR.A/2744/2017 ORDER DATED: 15/09/2022 challenged by the writ-applicant. Under such circumstances, the writ-applicant is not entitled to any relief as prayed for in the present writ-application.
5.3 Mr. Marshall, the learned Senior Counsel submitted that the writ-applicant was required to provide land for construction of stadium for sports activities. The writ-applicant approached the complainant stating that he is having right in the land situated at Village : Sankada and accordingly series of meetings were held and Memorandum of Understanding was arrived at between the parties on 24.7.2007. The writ-applicant was paid Rs.4.11 crores on various dates by different cheques as per the MOU. The accused was supposed to provide land for construction of stadium for sports activities to the complainant. The accused was not in a position to provide the said land and the complainant could not find alternative land and the price of the land increased tremendously. The complainant was required to send notice to the accused on 20.10.2013 to fulfill the obligation under the MOU dated Page 9 of 47 Downloaded on : Sun Dec 25 01:54:12 IST 2022 R/SCR.A/2744/2017 ORDER DATED: 15/09/2022 24.7.2007 or refund the amount received by him alongwith interest.
5.4 Mr. Marshall, the learned Senior Counsel submitted that amount of Rs.4.11 crores was retained by the accused for considerable time and the same was not returned by the accused and, therefore, notice came to be issued on 21.10.2014. Another MOU was entered into between the parties when the accused agreed to refund the amount alongwith the interest and the loss suffered by the complainant. However, the accused was not in a position to refund the amount and it was agreed that the said amount would be paid by the post dated Cheque No.486186 dated 15.5.2014 which was handed over to the mediator/escrow Mr. Bindukumar Shah so as to enable the accused to manage the funds. The said cheque was duly signed by the accused and it was assured that the cheque would be honoured on the date mentioned therein.
5.5 Mr. Marshall, the learned Senior Counsel submitted that Page 10 of 47 Downloaded on : Sun Dec 25 01:54:12 IST 2022 R/SCR.A/2744/2017 ORDER DATED: 15/09/2022 after proper intimation to the accused the complainant deposited the cheque of Rs.8. 22 crores in the account of Bank of Baroda on 20.5.2014 which was dishonoured with the endorsement that 'account blocked' and, therefore, the complainant had issued statutory notice to the writ-applicant on 3.6.2014. The writ-applicant did not reply to the said notice and, therefore, a complaint came to be filed by the respondent No.2 on 11.7.2014 under the provisions of Section 138 of the Negotiable Instruments Act, 1881 (page-46). 5.6 Mr. Marshall, the learned Senior Counsel submitted that the complaint and the documents produced alongwith the complaint revealed that there was legal enforceable liability which was not fulfilled by the writ-applicant and therefore, the Court below rightly issued process upon the writ-applicant and that the Criminal Case No.30323 of 2014 is not required to be quashed.
5.7 Mr. Marshall, the learned Senior Counsel relied on Page 11 of 47 Downloaded on : Sun Dec 25 01:54:12 IST 2022 R/SCR.A/2744/2017 ORDER DATED: 15/09/2022 Section 143 of the Act. Placing reliance on the same submitted that the provision is meant to regulate, effectively assist and aid the object of the doing substantial and real justice. The procedural law/provision has to be viewed as handmaid of justice and not meant to hamper the cause of justice. 5.8 Mr. Marshall, the learned Senior Counsel submitted that the decision in the case of J. V. Baharuni Vs. State of Gujarat, reported in (2014) 10 SCC 494 which has been relied upon by the writ-applicant herein is not mandatory in nature and does not vitiate the entire trial. It does not affect the rights of the parties.
6. Mr. Desai, the learned advocate appearing for the writ- applicant in rejoinder reiterated the submissions canvassed by him and submitted that the complaint is not maintainable qua the present writ-applicant and the same is required to be quashed and set aside.
7. The writ-applicant herein by preferring an application Page 12 of 47 Downloaded on : Sun Dec 25 01:54:12 IST 2022 R/SCR.A/2744/2017 ORDER DATED: 15/09/2022 below Ex.10 prayed for the following reliefs :-
"This Hon'ble court may be pleased to make a reference to the Hon'ble High court of Gujarat as provided u/s 395 of the Code of Criminal procedure in respect of validity/operation of section 251, 252 & 254 of The Cr.P.C in view of the judgment of The Hon'ble Supreme Court in Indian Bank Association and others V/s Union of India and others Writ Petition (Civil) No. 18/2013, decided on 21/4/2014."
8. The learned Magistrate considering the aforesaid application rejected the said application by order dated 25.3.2015 and held thus :-
"9) Thus, as the present complaint is under the Negotiable Instrument Act and as discussed above, the trial of this case as per Section-251, 252 and 254 of the Cr.P.C. can be held as Summons Trial only after hearing the parties and recording the reasons in writing.
10) Moreover, as provided in Section-142 of the Negotiable Instrument Act, if the court initiates the trial as summary, the procedure as mentioned Section-261 to 265 of the Cr.P.C. is required to be adopted. If the provision of Section-145 of the Negotiable Instrument Act is considered at Page 13 of 47 Downloaded on : Sun Dec 25 01:54:12 IST 2022 R/SCR.A/2744/2017 ORDER DATED: 15/09/2022 this stage, the statute has clearly provided therein that the court may pass an order appropriate as per law as per the requirement of the case after hearing the parties regarding the witnesses or evidences. Accordingly, the relief sought by the accused through present petition before the Hon'ble High Court of Gujarat to make reference under Section-395 of the Cr.P.C. seeking direction as to whether the provisions of Section-251, 252 and 254 of the Criminal Procedure Code can be considered to be invalid and inoperative or not in context with the Writ Petition (Civil) No.18/2013, Indian Bank Association and others v/s. Union of India of the Hon'ble Supreme Court, is not allowable as per law because as discussed above, present complaint is under the Negotiable Instrument Act, which is special law and the substantial and procedural provisions are made by the legislature and in the present case also, under Section-145 of the Negotiable Instrument Act, the Hon'ble Supreme Court has observed the proceedings conducted by the trial court under Section-138 of the Negotiable Instrument Act and the procedure laid down therein by the legislature. Thus, in the present case, the accused failed to prove that the such question of law has arisen in this case which is just and reasonable to make reference before the Hon'ble High Court of Gujarat under Section - 395 of the Cr.P.C. and trial of present case cannot be moved ahead until the reference is decided by the Hon'ble Gujarat High Court.Page 14 of 47 Downloaded on : Sun Dec 25 01:54:12 IST 2022
R/SCR.A/2744/2017 ORDER DATED: 15/09/2022
11) Thus, considering the discussion above, it does not appear that any such question regarding invalidity or inoperativity of Section-251, 252 or 254 of Cr.P.C. arises as per the relief sought by the accused in the present application regarding the provision of the law, the present application of the accused cannot be allowed as per law and therefore, following order is hereby passed in the interest of justice:
| ORDER | The application of Exhibit-10 of the accused seeking relief to make reference to the Hon'ble High Court of Gujarat under Section-395 of the Criminal Procedure Code is hereby rejected.
No order as to cost.
Pronounced this order today on 25 th May, 2015 in the open court with my signature."
9. Being aggrieved by the aforesaid order dated 25.3.2015 rejecting the application below Ex.10 the writ-applicant herein preferred the Criminal Revision Application No.103 of 2015 before the learned City Civil & Sessions Court, Vadodara. The learned 13th Additional Sessions Judge, Vadodara by order dated 24.3.2017 confirming the order passed by the learned Magistrate thereby rejected the criminal revision application Page 15 of 47 Downloaded on : Sun Dec 25 01:54:12 IST 2022 R/SCR.A/2744/2017 ORDER DATED: 15/09/2022 preferred by the writ-applicant herein and held thus :-
8. While deciding this revision application first of all this court has to examine whether order passed by the Ld. Trial Court below Ex-10 rejecting application for reference to Hon'ble High Court is illegal, arbitrary or perverse? For deciding it, first of all this Court has to go through the provisions of the section 395 of the CRPC which prescribed the conditions in which reference can be made before the Hon'ble Gujarat High Court. So looking to the bare wording of the section 395 three things are required to be satisfied for sending any question of law for reference to the Hon'ble High Court. (1) The court has to be satisfied that the question of validity of the Act is raised in pending case. (2) The court has to be satisfied that the determination of that point is necessary for the disposal of the case. (3) The court must be of the opinion that such Act or ordinance or regulation invalid or inoperative but has not been so declared by the Hon'ble High Court to which that court is subordinate or by the Hon'ble Supreme Court. When appreciating the question before this court then admittedly there is no question regarding validity of any Act, Ordinance or Regulation or of any provisions contained in an Act, Ordinance or Regulation but applicant comes with a case that by way of judgment passed by the Hon'ble Supreme Court in AIR 2014 SC 2528 Indian Bank Association & Ors V/s Union of India, the Hon'ble Supreme Court has indirectly overlooked the provisions of the Chapter Page 16 of 47 Downloaded on : Sun Dec 25 01:54:12 IST 2022 R/SCR.A/2744/2017 ORDER DATED: 15/09/2022 20 of the CRPC and by way of that judgment section 251 to 254 of Cr.PC become inoperative or invalid. It is to be decided by Hon'ble Gujarat High Court. Here it is to be noted that Hon'ble Supreme Court has passed that verdict in AIR 2014 SC 2528 Indian Bank Association & Ors V/s Union of India and it is published and circulated judgment but it is the applicant who came before the court with a question that which law would prevailing legislative framed or presidential law? when we look at the Article 141 & 142 of the Constitution of India it runs as under:
"141. Law declared by the Supreme Court to be binding on all courts- The law declared by the Supreme Court shall be binding on all courts within the territory of India.
142 Enforcement of decrees and orders of Supreme Court and orders as to discovery etc.-(1) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provisions in that behalf is so made, in such manner as the President may by order prescribe.
(2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole Page 17 of 47 Downloaded on : Sun Dec 25 01:54:12 IST 2022 R/SCR.A/2744/2017 ORDER DATED: 15/09/2022 of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself.
9. Therefore, looking to the provisions of the Article 141 & 142 when legislature has framed any law then Hon'ble Apex Court is authorized for securing of justice, to interpret that law in suitable manner which ultimately reaches to the object and goal stated in the preamble of the Constitution. Thus, prime object of the Constitution is to secure justice to every person in India. The legislature has framed CRPC to regulate procedure for the court function of the subordinate court in India. Hon'ble Apex Court has in its wisdom laid down ratio by issuing guidelines to be followed in the matter of the NI Act for its speedy disposal and that guidelines is to be followed by each and every court within the territory of India including each and every Hon'ble High Court in territory of the India as per Article 14 of the Constitution of India. The applicant has raised the question that by way of verdict passed by the Hon'ble Supreme Court in judgment Supra it has in validate provisions of the section 251 to 254 of the CRPC and it is to be required to send before the Hon'ble High Court under section 395 of the CRPC. This court would like to make it clarify that as per the Article 141 of the Constitution of India the Hon'ble Gujarat High Court is also bound by the verdict passed in judgment Supra by Hon'ble Supreme Court Page 18 of 47 Downloaded on : Sun Dec 25 01:54:12 IST 2022 R/SCR.A/2744/2017 ORDER DATED: 15/09/2022 and looking to the bare wordings of section 395 of the CRPC it doesn't include any situation when there is question of validity of any provisions of the Act, Ordinance or Regulation qua presidential law. In that circumstances in the scope of section 395 the question doesn't fall that by way of precedential law if legislative law becomes modified or inoperative to certain extent then to decide which law legislative or precedential will prevail reference can be made. So in absence of any provisions regarding validity of the precedential law, qua legislative law and section 395 is silent for sending such question before the Hon'ble High Court for reference then Ld. Trial Court has rightly concluded that such application for reference is not tenable and there is no error, arbitraryness or perversity in that order though findings given by the Ld. Trial Court may be different or upto certain extent misleading one.
10. As discussed above when section 395 doesn't describe any situation for reference in case of the validity of the presidential law qua legislative law but only describe situation when one Act, regulation or ordinance comes in the conflict with other Act, Ordinance or Regulation, In that circumstances when question regarding validity of any provisions is to be decided then matter is to be sent to the Hon'ble High Court for reference. It is also to be clarified that if the applicant has any grievance against verdict of the Hon'ble Supreme Court passed in AIR 2014 SC 2528 Indian Bank Association & Ors V/ Page 19 of 47 Downloaded on : Sun Dec 25 01:54:12 IST 2022 R/SCR.A/2744/2017 ORDER DATED: 15/09/2022 s Union of India then he should exhaust appropriate remedy before the Hon'ble Apex Court itslef by way of review petition or curative petition but Hon'ble High Court is within the territory of India as laid down in Article 141 of the Constitution of India. In that circumstances, the Hon'ble High Court even can not exercise its reference jurisdiction under section 395 when applicant is quite well aware and vigilant by moving such application that he must have possesses that much legal knowledge that before which authority he should approach for getting appropriate remedy but strangely he filed application under section 395 which is against provisions "c" of sections 395, which itself indicates his ulterior motive to prolong matter and by way of that to defeat objections of the Hon'ble Supreme Court itself reiterated by it in many judgments such that of speedy justice. Right of speedy justice also comes under the preview of the Article 21 of the Constitution of India. But applicant has tried to delay the matter by filing frivilous application before the Ld. Trial Court and also filing revision application before this Court. Moreover, he has not stopped upto that, he himself knows that the reference can be made only in case of the question of validity of law is there and reference cannot be made on the basis of the factual aspects then also he has applied before my Ld. Predecessor to call for the records of Ld. Trial Court record of the Trial Court lies with this revision application record since 24.06.2015 in that way he tried to delay which has ultimately frustrated the ratio laid down by Hon'ble Page 20 of 47 Downloaded on : Sun Dec 25 01:54:12 IST 2022 R/SCR.A/2744/2017 ORDER DATED: 15/09/2022 Supreme Court in above stated judgment and other judgments for speedy justice. Also taking note of the conduct of the applicant in the interest of justice following order is to be passed:
:ORDER :
Present Revision Application is dismissed.
Applicant is ordered and directed to deposit Rs. 25,000(Twenty Five Thousand) as cost in D.L.S.A within 30 days of passing of this order.
R & P of Criminal Case No.30223-2014 be transmitted along with copy of this order with a directions to expedite the matter and to conclude it as early as possible.
Declared & pronounced in Open Court on 24th day of March 2017."
10. Being aggrieved and dissatisfied by the impugned orders rejecting the application preferred by the applicant herein below Ex.10 the applicant has prayed for quashing of the impugned orders alongwith prayer for quashing of the Criminal Case being Criminal Case No.30323 of 2014.Page 21 of 47 Downloaded on : Sun Dec 25 01:54:12 IST 2022
R/SCR.A/2744/2017 ORDER DATED: 15/09/2022 Analysis :-
11. It is apposite to refer to Section 395 of the Criminal Procedure Code, 1973 which reads thus :-
"395. Reference to High Court :-
(1) Where any Court is satisfied that a case pending before it involves a question as to the validity of any Act, Ordinance or Regulation or of any provision contained in an Act, Ordinance or Regulation, the determination of which is necessary for the disposal of the case, and is of opinion that such Act, Ordinance, Regulation or provision is invalid or inoperative, but has not been so declared by the High Court to which that Court is subordinate or by the Supreme Court, the Court shall state a case setting out its opinion and the reasons therefor, and refer the same for the decision of the High Court.
Explanation.- In this section, "Regulation" means any regulation as defined in the General Clauses Act, 1897, or in the General Clauses Act of a State.
(2) A Court of Session or a Metropolitan Magistrate may, if it or he thinks fit in any case pending before it or him to which the provisions of sub-section (1) do not apply, refer for the decision of the High Court any question of law arising in the Page 22 of 47 Downloaded on : Sun Dec 25 01:54:12 IST 2022 R/SCR.A/2744/2017 ORDER DATED: 15/09/2022 hearing of such case.
(3) Any Court making a reference to the High Court under sub-section (1) or sub-section (2) may, pending the decision of the High Court thereon, either commit the accused to jail or release him on bail to appear when called upon." (1) Section 395(1) of the Criminal Procedure Code, 1973 would apply only when the question as to the validity of the any of the Act or Ordinance or Regulation or of any provision contained in an Act, Ordinance or Regulation are involed, once the Court forms an opinion that such Act, Ordinance, Regulation or provision is invalid or inoperative. (2) Section 395(2) of the Criminal Procedure Code, 1973 would operate when the Session Court or a Metropolitan Magistrate deems it fit that any question of law arising in the hearing of the case requires to be referred to the High Court or its decision wherein provision of Section 395(1) is not applied can make reference.
It is the discretion left to the Court whether it finds it Page 23 of 47 Downloaded on : Sun Dec 25 01:54:12 IST 2022 R/SCR.A/2744/2017 ORDER DATED: 15/09/2022 proper to make reference. The Court below has power to make reference to the High Court under Section 395(2) and 395(1) would be applicable if it satisfies the conditions mentioned therein. In the facts of the present case, the subject matter for consideration before the Court below is a complaint filed by the respondent No.2 original complainant under the provisions of Section 138 of the Negotiable Instruments Act for return of cheque for the reason "55 Account Blocked". The said intimation was given by the Bank by its return memo dated 20.5.2014. It appears that statutory notice under Section 138 of the Negotiable Instruments Act came to be issued pursuant to the return of cheque for the reason "55 Account Blocked". After issuance of statutory notice dated 3.6.2014 to pay the amount of Rs.8,22,00,000/- within a period of 15 days, instead of paying the said amount to the complainant - respondent No.2 the accused No.1 through the power of attorney holder of all the accused persons replied that they were not ready and willing to pay the said amount as the complainant committed breach of condition of MoU dated 21.10.2013. Page 24 of 47 Downloaded on : Sun Dec 25 01:54:12 IST 2022
R/SCR.A/2744/2017 ORDER DATED: 15/09/2022
12. In view of above, the respondent No.2 - original complainant was constrained to prefer Criminal Case No.30323 of 2014 under the provisions of Section 138 of the Negotiable Instruments Act, 1881 on 11.7.2014. Process came to be issued by the Court below by order dated 11.7.2014. The said order reads thus :-
"Pursuant to the complaint, verification of affidavit and the submission of the complainants, considering the documentary evidences and contentions, the complainant has contended in this case that the cheque in question was issued by the accused no.1 in respect of transaction mentioned in the complaint and upon returning the same, the complainant had issued notice to the accused and it was not served, present complaint has been filed. However, as the present complaint has been brought by the complainant for returning of the cheque under Section-138 of the NI Act and perusing the documents and case papers, as per the case of the complainant, prima-facie it appears that this cheque was issued by accused no.1 and considering the circumstances, considering the established condition of the act, the present complaint under Section-204 of the Cr.P.C. is fit to be tried and therefore, it is hereby ordered that upon payment of PF and production of copies by the complainant, this complainant Page 25 of 47 Downloaded on : Sun Dec 25 01:54:12 IST 2022 R/SCR.A/2744/2017 ORDER DATED: 15/09/2022 to be taken on register and issue summons R/o. 03/09/2014 against the accused for the offense under Section-138 of N.I. Act."
13. It is undisputed that the cheque in question amounting to Rs.8,22,00,000/- was issued by the writ-applicant herein on 15.5.2014 duly signed by the writ-applicant. According to the writ-applicant, the subject cheque mentioned in the original complaint is not with the complainant, but the custody is with the escrow agent, namely, Bindukumar Shah. The cheque was deposited with the escrow agent for fulfillment of terms and conditions of MoU dated 20.10.2013. The writ-applicant also informed the respondent No.2 by letter dated 9-10.5.2014 that the writ-applicant was ready and willing to fulfill the conditions of MoU and once the aforesaid conditions were fulfilled the writ-applicant promised to pay the balance amount.
14. In view of above, it is the case of the writ-applicant that the dispute is with regard to fulfilling the conditions of MoU entered into between the parties and, therefore, the return of Page 26 of 47 Downloaded on : Sun Dec 25 01:54:12 IST 2022 R/SCR.A/2744/2017 ORDER DATED: 15/09/2022 the aforesaid cheque with the endorsement "Account Blocked"
would not result into complaint under Section 138 of the Negotiable Instruments Act, 1881.
15. It is also contended by the writ-applicant herein that the writ-applicant was not liable to pay or discharge any legal duty or other liability and, therefore, Section 138 of the Negotiable Instruments Act, 1881 cannot be attracted and hence the impugned complaint is liable to be quashed and set aside. The writ-applicant herein has also raised an objection with regard to the affidavit filed by Shri Anshuman Gayakwad, as Secretary of the Baroda Cricket Association registered under the Bombay Trust Act and submitted that the Rules do not provide/give authority to Shri Anshuman Gayakwad, Honorary Secretary to act on behalf of the Association and placed reliance on Rules of the Baroda Cricket Association established in 1937, Memorandum of Association rules and regulations, more particularly Rule 35. In view of this Court, all the contentions that are raised by the writ-applicant herein can be Page 27 of 47 Downloaded on : Sun Dec 25 01:54:12 IST 2022 R/SCR.A/2744/2017 ORDER DATED: 15/09/2022 taken before the Court below at the time of hearing of Criminal Case No.30323 of 2014.
16. The writ-applicant herein has admitted that the cheque in question amount to Rs.8,22,00,000/- is duly signed by the writ-applicant which came to be deposited by the respondent No.2 - original complainant with the Bank of Baroda on 28.5.2014 which came to be dishonoured with the endorsement that the "Account Blocked" and, therefore, statutory notice under Section 138 of the Negotiable Instruments Act, 1881 came to be issued to the writ-applicant on 3.6.2014. The writ- applicant however did not to have replied the said notice which resulted into cause of action for filing of impugned Criminal Case No.30323 of 2014 by the respondent No.2 on 11.7.2014 under Section 138 of the Negotiable Instruments Act, 1881. Process came to be issued on 11.7.2014.
17. At this stage, it is apposite to refer to law as laid down by the Hon'ble Supreme Court as well as the High Court. Page 28 of 47 Downloaded on : Sun Dec 25 01:54:12 IST 2022
R/SCR.A/2744/2017 ORDER DATED: 15/09/2022
(a) In the case of Rathish Babu Unnikrishnan v/s. The State (Government of NCT of Delhi) & Anr. reported in 2022 Live Law SC) 413, the relevant observations read thus:
"8. The issue to be answered here is whether summons and trial notice should have been quashed on the basis of factual defences. The corollary therefrom is what should be the responsibility of the quashing Court and whether it must weigh the evidence presented by the parties, at a pre-trial stage.
11. The legal presumption of the cheque having been issued in the discharge of liability must also receive due weightage. In a situation where the accused moves Court for quashing even before trial has commenced, the Court's approach should be careful enough to not to prematurely extinguish the case by disregarding the legal presumption which supports the complaint. The opinion of Justice K.G. Balakrishnan for a three judges Bench in Rangappa vs. Sri Mohan4 would at this stage, deserve our attention: -
"26. ... we are in agreement with the respondent claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. As noted in the citations, this is of course in the nature of a rebuttable Page 29 of 47 Downloaded on : Sun Dec 25 01:54:12 IST 2022 R/SCR.A/2744/2017 ORDER DATED: 15/09/2022 presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant."
15. In the impugned judgment, the learned Judge had rightly relied upon the opinion of Justice J.S.Khehar for a Division Bench in Rajiv Thapar (supra), which succinctly express the following relevant parameters to be considered by the quashing Court, at the stage of issuing process, committal, or framing of charges, "28. The High Court, in exercise of its jurisdiction under Section 482 CrPC, must make a just and rightful choice. This is not a stage of evaluating the truthfulness or otherwise of the allegations levelled by the prosecution/ complainant against the accused. Likewise, it is not a stage for determining how weighty the defences raised on behalf of the accused are. Even if the accused is successful in showing some suspicion or doubt, in the allegations levelled by the prosecution/ complainant, it would be impermissible to discharge the accused before trial. This is so because it would result in giving finality to the accusations levelled by the prosecution/complainant, without allowing the prosecution or the complainant to adduce evidence to Page 30 of 47 Downloaded on : Sun Dec 25 01:54:12 IST 2022 R/SCR.A/2744/2017 ORDER DATED: 15/09/2022 substantiate the same."
16. The proposition of law as set out above makes it abundantly clear that the Court should be slow to grant the relief of quashing a complaint at a pre-trial stage, when the factual controversy is in the realm of possibility particularly because of the legal presumption, as in this matter. What is also of note is that the factual defence without having to adduce any evidence need to be of an unimpeachable quality, so as to altogether disprove the allegations made in the complaint.
18. Situated thus, to non-suit the complainant, at the stage of the summoning order, when the factual controversy is yet to be canvassed and considered by the trial court will not in our opinion be judicious. Based upon a prima facie impression, an element of criminality cannot entirely be ruled out here subject to the determination by the trial Court. Therefore, when the proceedings are at a nascent stage, scuttling of the criminal process is not merited."
(b) In the case of Pawan Jagannath Sharma S/o Jagannath Sharma Versus Shriram transport Finance Company Ltd., through Sanjay R. Solanki, reported in 2021 (0) AIJEL-HC 243429, Paragraphs 11 to 16 read thus :-
Page 31 of 47 Downloaded on : Sun Dec 25 01:54:12 IST 2022
R/SCR.A/2744/2017 ORDER DATED: 15/09/2022 "11. 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.
12. All these disputed questions of facts or questions cannot 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 Page 32 of 47 Downloaded on : Sun Dec 25 01:54:12 IST 2022 R/SCR.A/2744/2017 ORDER DATED: 15/09/2022 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.
13. 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 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.
14. 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.
15. Therefore, present application is dismissed at the stage of admission without issuing any notice to the other side.
16. 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 Page 33 of 47 Downloaded on : Sun Dec 25 01:54:12 IST 2022 R/SCR.A/2744/2017 ORDER DATED: 15/09/2022 contentions before the trial Court, which shall be gone into and dealt with by the concerned court on merits and in accordance with law."
In view of the aforesaid position of law as referred to above, the writ-applicant has raised certain factual questions which are disputed questions of fact. Under such circumstances, prima facie, it appears that the cheque was issued by the writ-applicant to the complainant with his signature and that there was monetary transaction between them. In such circumstances, this Court would not exercise its inherent powers under Section 482 of the Criminal Procedure Code, 1973. One of the contentions raised by the writ- applicant was that the cheque has been returned with the endorsement "55 Account Blocked". The Hon'ble Supreme Court in the case of Vikram Singh Vs. Shyoji Ram, reported in 2022 LiveLaw (SC) 223 considered similar question wherein the cheque was dishonoured and returned wherein it was endorsed "Account Frozen", it was held by the Hon'ble Supreme Court as under :-
Page 34 of 47 Downloaded on : Sun Dec 25 01:54:12 IST 2022
R/SCR.A/2744/2017 ORDER DATED: 15/09/2022 "The bank account has been mentioned on the cheque and the endorsement to the effect "Account Frozen" will presuppose that an account existed. This is a matter which is to be taken into consideration by the trial court in detail, and not merely on the evidence of DW2 and 3. The parties will have to go through a fullfledged trial. In any event, it was not a matter the proceedings could have been quashed."
In view of the aforesaid ratio as laid down by the Hon'ble Supreme Court, this Court is not inclined to quash the impugned complaint on the ground that the endorsement while dishonouring the cheque which shows "55 Account Blocked"
would not in any way terminate or result that the criminal complaint be quashed at this stage. The parties are required to go through fullfledged trial.
(c) In the case of M/s. M.M.T.C. Ltd., and Anr., vs. M/s.
Medchl Chemicals and Pharma (P) Ltd., and Anr., reported in AIR 2002 SC 182, Paragraphs 13 to 18 read thus :-
"13. The learned Judge has next gone into facts and arrived at a conclusion that the cheques were issued as security and Page 35 of 47 Downloaded on : Sun Dec 25 01:54:12 IST 2022 R/SCR.A/2744/2017 ORDER DATED: 15/09/2022 not for any debt or liability existing on the date they were issued. In so doing the learned Judge has ignored well settled law that the power of quashing criminal proceedings should be exercised very stringently and with circumspection. It is settled law that at this stage the Court is not justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the complaint. The inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice. At this stage the Court could not have gone into merits and/or come to a conclusion that there was no existing debt or liability. It is next held as follows:
"This is a special provision incorporated in the Negotiable Instrument Act. It is necessary to allege specifically in the complaint that there was a subsisting liability and an enforceable debt and to discharge the same, the cheques were issued. But, we do not find any such allegation at all. The absence of such vital allegation, considerably impairs the maintainability."
14. In the case of Maruti Udyog Ltd. v. Narender reported in (1999) 1 SCC 113, this Court has held that, by virtue of Section 139 of the Negotiable Instruments Act, the Court has to draw a presumption that the holder of the cheque received the cheque for discharge of a debt or liability until the contrary is proved. This Court has held that at the initial stage of the proceedings the High Court was not justified in Page 36 of 47 Downloaded on : Sun Dec 25 01:54:12 IST 2022 R/SCR.A/2744/2017 ORDER DATED: 15/09/2022 entertaining and accepting a plea that there was no debt or liability and thereby quashing the complaint.
15. A similar view has been taken by this Court in the case of K. N. Beena v. Muniyappan reported in 2001 (7) SCALE 331, wherein again it has been held that under Section 139 of the Negotiable Instruments Act the Court has to presume, in a complaint under Section 138, that the cheque had been issued for a debt or liability.
16. There is therefore no requirement that the Complainant must specifically allege in the complaint that there was a subsisting liability. The burden of proving that there was no existing debt or liability was on the respondents. This they have to discharge in the trial. At this stage, merely on basis of averments in the Petitions filed by them the High Court could not have concluded that there was no existing debt or liability.
17. Lastly it was submitted that a complaint under Section 138 could only be maintained if the cheque was dishonoured for reason of funds being insufficient to honour the cheque or if the amount of the cheque exceeds the amount in the account. It is submitted that as payment of the cheques had been stopped by the drawer one of the ingredients of Section 138 was not fulfilled and thus the complaints were not maintainable.
Page 37 of 47 Downloaded on : Sun Dec 25 01:54:12 IST 2022
R/SCR.A/2744/2017 ORDER DATED: 15/09/2022
18. Just such a contention has been negatived by this Court has, in the case of Modi Cements Ltd. v. Kuchil Kumar Nandi reported in (1998) 3 SCC 249. It has been held that even though the cheque is dishonoured by reason of 'stop payment' instruction an offence under Section 138 could still be made out. It is held that the presumption under Section 139 is attracted in such a case also. The authority shows that even when the cheuqe is dishonoured by reason of stop payment instructions by virtue of Section 139 the Court has to presume that the cheque was received by the holder for the discharge, in whole or in part, of any debt or liability. Of course this is a rebuttable presumption. The accused can thus show that the "stop payment" instructions were not issued because of insufficiency or paucity of funds. If the accused shows that in his account there was sufficient funds to clear the amount of the cheque at the time of presentation of the cheque for encashment at the drawer bank and that the stop payment notice had been issued because of other valid causes including that there was no existing debt or liability at the time of presentation of cheque for encashment, then an offence under Section 138 would not be made out. The important thing is that the burden of so proving would be on the accused. Thus a Court cannot quash a complaint on this ground."
18. The following questions arise for consideration of this Page 38 of 47 Downloaded on : Sun Dec 25 01:54:12 IST 2022 R/SCR.A/2744/2017 ORDER DATED: 15/09/2022 Court :-
(i) Is the writ-applicant herein justified in seeking reference under Section 395 of the Code of Criminal Procedure in respect of validity and operation of Sections 251, 252 and 254 of the Code of Criminal Procedure ?
Both the Courts below declined to accept the contention of the writ-applicant herein. There is no reason to disagree with the reasoning of the Courts below. The writ-applicant herein / original accused has failed to point out to hold that Section 395 of the Code of Criminal Procedure is attracted seeking reference before the High Court or before the Hon'ble Supreme Court. The question of validity of provisions of Sections 251 and 252 of the Code of Criminal Procedure does not arise. As indicated hereinabove both the Courts below have examined the aforesaid question and held that it is not necessary to refer with regard to the validity and operation of the Sections 251, 252 and 254 of the Code of Criminal Procedure to the High Court. This Court is also of the opinion Page 39 of 47 Downloaded on : Sun Dec 25 01:54:12 IST 2022 R/SCR.A/2744/2017 ORDER DATED: 15/09/2022 that there is no requirement to make reference to this Court or the Hon'ble Supreme Court to examine the validity of the aforesaid sections. It appears that the writ-applicant is interested in delaying the trial before the Magistrate.
(ii) Whether the procedure adopted by the learned Magistrate is erroneous in law and that the trial Court has not issued process under Section 206 of the Code of Criminal Procedure but the process is issued under Section 204 of the Code of Criminal Procedure and, therefore, the trial is vitiated ?
The second question raised by the writ-applicant herein is with regard to the procedure adopted by the learned Magistrate which is erroneous in law.
At this stage, it is apposite to refer to decision in the case of J. V. Baharuni and Anr. vs. State of Gujarat and Anr., reported in (2014) 10 SCC 494, paragraphs 43 and 60 read thus :-
Page 40 of 47 Downloaded on : Sun Dec 25 01:54:12 IST 2022
R/SCR.A/2744/2017 ORDER DATED: 15/09/2022 "43. There is no straight jacket formula to try the cases falling under the N.I. Act. The law provided therefor is so flexible that it is up to the prudent judicial mind to try the case 'summarily' or otherwise. No doubt, the second proviso to Section 143 of the Act specifies that in case the Magistrate does not deem the case fit to try summarily, he shall record an order to that effect after hearing the parties. Just because this directive is not followed scrupulously by the Trial Court would itself not vitiate the entire trial and the appellate Court should not direct for a de novo trial merely on the ground that the Trial Court had not recorded the order for not trying the case summarily.
"60. However, to summarise and answer the issues raised herein, following directions are issued for the Courts seized off with similar cases:
60.1 All the subordinate Courts must make an endeavour to expedite the hearing of cases in a time bound manner which in turn will restore the confidence of the common man in the justice delivery system. When law expects something to be done within prescribed time limit, some efforts are required to be made to obey the mandate of law.
60.2 The learned Magistrate has the discretion under Section 143 of the N.I. Act either to follow a summary trial or summons trial. In case the Magistrate wants to conduct a summons trial, he should record the reasons after hearing the Page 41 of 47 Downloaded on : Sun Dec 25 01:54:12 IST 2022 R/SCR.A/2744/2017 ORDER DATED: 15/09/2022 parties and proceed with the trial in the manner provided under the second proviso to Section 143 of the N.I. Act. Such reasons should necessarily be recorded by the Trial Court so that further litigation arraigning the mode of trial can be avoided.
60.3 The learned Judicial Magistrate should make all possible attempts to encourage compounding of offence at an early stage of litigation. In a prosecution under the Negotiable Instruments Act, the compensatory aspect of remedy must be given priority over the punitive aspect.
60.4 All the subordinate Courts should follow the directives of the Supreme Court issued in several cases scrupulously for effective conduct of trials and speedy disposal of cases.
60.5 Remitting the matter for de novo trial should be exercised as a last resort and should be used sparingly when there is grave miscarriage of justice in the light of illegality, irregularity, incompetence or any other defect which cannot be cured at an appellate stage. The appellate Court should be very cautious and exercise the discretion judiciously while remanding the matter for de novo trial.
60.6 While examining the nature of the trial conducted by the Trial Court for the purpose of determining whether it was summary trial or summons trial, the primary and predominant test to be adopted by the appellate Court should be whether it was only the substance of the evidence that was recorded or whether the complete record of the deposition of the Page 42 of 47 Downloaded on : Sun Dec 25 01:54:12 IST 2022 R/SCR.A/2744/2017 ORDER DATED: 15/09/2022 witness in their chief examination, cross examination and re- examination in verbatim was faithfully placed on record. The appellate Court has to go through each and every minute detail of the Trial Court record and then examine the same independently and thoroughly to reach at a just and reasonable conclusion."
Section 143 of the Negotiable Instruments Act, 1881 reads thus :-
"SECTION 143 : Power of Court to try cases summarily.
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), all offences under this Chapter shall be tried by a Judicial Magistrate of the first class or by a Metropolitan Magistrate and the provisions of sections 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trials:
Provided that in the case of any conviction in a summary trial under this section, it shall be lawful for the Magistrate to pass a sentence of imprisonment for a term not exceeding one year and an amount of fine exceeding five thousand rupees:
Provided further that when at the commencement of, or in the course of, a summary trial under this section, it appears to the Magistrate that the nature of the case is Page 43 of 47 Downloaded on : Sun Dec 25 01:54:12 IST 2022 R/SCR.A/2744/2017 ORDER DATED: 15/09/2022 such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the case summarily, the Magistrate shall after hearing the parties, record an order to that effect and thereafter recall any witness who may have been examined and proceed to hear or rehear the case in the manner provided by the said Code.
(2) The trial of a case under this section shall, so far as practicable, consistently with the interests of justice, be continued from day to day until its conclusion, unless the Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded in writing.
(3) Every trial under this section shall be conducted as expeditiously as possible and an endeavour shall be made to conclude the trial within six months from the date of filing of the complaint."
While the aforesaid section provides for procedure which requires to be followed by the learned Magistrate while conducting the trial, the discretion is vested with the trial Court in respect of the procedure to be followed by him as to the manner and method of conducting the trial. No case is made out for interference under Articles 226 and 227 of the Page 44 of 47 Downloaded on : Sun Dec 25 01:54:12 IST 2022 R/SCR.A/2744/2017 ORDER DATED: 15/09/2022 Constitution of India to exercise inherent powers of Section 482 of the Criminal Procedure Code, 1973 in the order dated 24.3.2017 passed in the Criminal Revision Application No.103 of 2013 by the Additional Sessions Judge, Vadodara confirming the order dated 25.3.2015 passed below Ex.10 in the Criminal Case No.30323 of 2013 by the 3rd Additional Civil Judge and Chief Judicial Magistrate, Vadodara.
The learned Magistrate by order dated 10.7.2014 issued process and the writ-applicant participated in the said proceeding and chose not to challenge the same. The impugned complaint is under the provision of Section 138 of the Negotiable Instruments Act, 1973 and the procedure mentioned in Sections 261 to 265 in the Code of Criminal Procedure is required to be adopted. The learned Magistrate having considered the facts of the present case held the complaint under Section 142 is fit to be tried though Section 143 which provides procedure which is required to be followed by the learned Magistrate. The discretion is vested with the Page 45 of 47 Downloaded on : Sun Dec 25 01:54:12 IST 2022 R/SCR.A/2744/2017 ORDER DATED: 15/09/2022 learned Magistrate with respect to the procedure which is required to be followed and the manner and method of conducting the trial.
In the case of J. V. Baharuni Vs. State of Gujarat, reported in (2014) 10 SCC 494, as referred above, the Hon'ble Supreme Court held that if the directive is not followed by the trial Court, it would not vitiate the trial. In the facts of the present case the learned Magistrate has also recorded the reasons as required. The discretion exercised by the learned Magistrate is not required to be interfered by exercising extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India, more particularly in view of the law laid down by the Hon'ble Apex Court as discussed above.
(iii) Whether the impugned complaint being Criminal Case No.30323 of 2014 is not maintainable against the writ- applicant ?
The writ-applicant being signatory to the cheque in Page 46 of 47 Downloaded on : Sun Dec 25 01:54:12 IST 2022 R/SCR.A/2744/2017 ORDER DATED: 15/09/2022 question dated 15.5.2014 and having admitted the same, the contention of the writ-applicant for quashing the complaint is wholly unjustified, since it is for the writ-applicant herein to establish that there is no legal enforceable debt as required and the circumstances under which the cheque issued by the writ-applicant came to be dishonoured. No case for interference is made out for exercising extraordinary jurisdiction under Section 482 of the Code of Criminal Procedure.
19. In view of above observations, the present writ- application fails and the same is dismissed. Interim relief, if any, stands vacated.
(VAIBHAVI D. NANAVATI,J) K.K. SAIYED Page 47 of 47 Downloaded on : Sun Dec 25 01:54:12 IST 2022