Gujarat High Court
Idrish Shermohammad Memon vs State Of Gujarat on 23 March, 2023
Author: Samir J. Dave
Bench: Samir J. Dave
NEUTRAL CITATION
R/CR.MA/5080/2023 JUDGMENT DATED: 23/03/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 5080 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SAMIR J. DAVE Sd/-
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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IDRISH SHERMOHAMMAD MEMON
Versus
STATE OF GUJARAT
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Appearance:
MR CB DASTOOR(238) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MR HARDIK MEHTA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 23/03/2023
ORAL JUDGMENT
1. By way of this petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code"), the petitioner has prayed to quash and set aside of judgment and order Page 1 of 11 Downloaded on : Sun Sep 17 22:57:01 IST 2023 NEUTRAL CITATION R/CR.MA/5080/2023 JUDGMENT DATED: 23/03/2023 undefined passed by learned 6th Additional Chief Judicial Magistrate Court, Gandhinagar in Criminal Case No.1260 of 2020 dated 30/01/2023 convicting the petitioner (original accused) under section 138 of the Negotiable Instrument Act without approaching the First Appellate Court/ Sessions Court by way of an appeal, the petitioner has preferred present petition to quash and set aside conviction awarded to him.
2. Brief facts of the case are that the complaint is filed by respondent no.2 alleging that the petitioner has taken cash loan of Rs.5,85,000/- from the complainant and in turn issued Cheque No.891043 dated 11/12/2019 of the same amount of Sarvoday Nagrik Sahakari Bank Ltd., Himmatnagar Branch. When the aforesaid cheque was placed for clearance by the complainant, the same came to be dishonoured on the ground of insufficient fund. The complainant served notice through his advocate to the petitioner but the same is not replied by the petitioner. Hence, the complaint is filed Page 2 of 11 Downloaded on : Sun Sep 17 22:57:01 IST 2023 NEUTRAL CITATION R/CR.MA/5080/2023 JUDGMENT DATED: 23/03/2023 undefined wherein summons was issued to the petitioner. After considering the documentary evidence lead by the parties, the Hon'ble Court has passed order convicting the petitioner for the offence alleged to have been committed under Section 138 of the Negotiable Instruments Act.
3. Learned advocate for the petitioner submitted that the petitioner has paid entire amount of cheque of Rs.5,85,000/- to respondent complainant and the parties have amicably settled the matter and the complainant has filed affidavit to that effect as he does not want to proceed with the matter further and has no objection for quashing and setting aside the impugned judgment and order passed by learned 6th Additional Chief Judicial Magistrate First Class Court, Gandhinagar and acquittal of the petitioner from the offence punishable under Section 138 of the Negotiable Instruments Act.
3.1. In support of the aforesaid submissions, Page 3 of 11 Downloaded on : Sun Sep 17 22:57:01 IST 2023 NEUTRAL CITATION R/CR.MA/5080/2023 JUDGMENT DATED: 23/03/2023 undefined learned advocate for the petitioner has relied upon certain decisions of this Hon'ble Court as well as other Hon'ble High Courts which are under:
1) Order of this Court dated 20/01/2023 passed in Criminal Misc. Application No.22448 of 2022.
2) Order of this Court dated 07/10/2022 passed in Criminal Misc. Application No.18162 of 2022.
3) Order of this Court dated 06/03/2021 passed in Criminal Misc. Application No.18712 of 2020.
4) Order of this Court dated 01/02/2022 passed in Special Criminal Application No.697 of 2022
5) Sohan Lal Kapoor vs. Manoj Bagga reported in 2014 Law Suit (HP) 1344.
6) Natwar Singh Bhauta S/O Devinder Sing vs. Tikkam Dass Banshtu S/O Kaunl Ram Nanshtu, State of Himachal Pradesh reported in 2022 Law Suit (HP) 646.
7) Mehfil Hospitality Ltd and Ors. vs. S. A. Khan and others reported in 2012 Law Suit (P&H) 3259.Page 4 of 11 Downloaded on : Sun Sep 17 22:57:01 IST 2023
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4. Heard learned advocate for the petitioner and learned APP for the respondent-State as well as perused the relevant documentary evidence produced on record.
5. Learned counsel for the respective parties submitted that during pendency of the criminal proceedings, as referred to above, the parties have amicably settled their issue by way of mutual settlement and pursuant to understanding arrived at, the Complainant has accordingly filed an affidavit, which is on record. The complainant has categorically stated in the affidavit that dispute is amicably resolved and has no objections if the present proceedings are quashed and there is no surviving grievance between them.
6. It appears from the relevant documentary evidence produced on record that the allegations against the present petitioner are proved and thereby the impugned judgment and order is passed by the competent Court.
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7. The petitioner has not preferred any appeal before the concerned First Appellate/ Sessions Court and directly approached this Court by way of writ petition under Article 226 of the Constitution of India under section 482 of the Code of Criminal Procedure. It is desirable that against the order of conviction under section 138 of the Negotiable Instrument Act awarded by the learned Judicial Magistrate First Class Court, the order of conviction is required to be challenged before the concerned Sessions Court. Therefore, it is desirable that any accused who is convicted under section 138 of the Negotiable Instrument Act has to prefer an appeal under the provisions of the Code of Criminal Procedure before the First Appellate Court, even if the matter is amicably settled between the parties or compromise entered into between the parties. This Court has power to accept the prayer of quashing of the order of conviction, however, this Court is of the opinion that the High Court must be slow to entertain such type of Page 6 of 11 Downloaded on : Sun Sep 17 22:57:01 IST 2023 NEUTRAL CITATION R/CR.MA/5080/2023 JUDGMENT DATED: 23/03/2023 undefined application, where the accused did not prefer appeal before the First Appellate Court/ Sessions Court. Even otherwise, in any situation, against the order of conviction, there is provision to prefer appeal before the learned Sessions Court. In the present case on hand, the petitioner has approached this Court for quashing of the order of conviction under Negotiable Instrument Act without availing alternative remedy of appeal available before the Sessions Court.
7.1 At this stage, in a decision of this Court in case of Harivallabh Parikh Vs. State of Gujarat, reported in 1997 (1) GLR 638, is required to be referred to, wherein this Court has observed as under:
"14. Having held that an application under Section 438 of the Cr.P.C. is maintainable to the aforesaid extent, a petition under Article 226 of the Constitution of India would not be maintainable. this Court and the Apex Court have repeatedly said that wherever efficacious alternate remedy available, the provisions of Article 226 or 227 of the Constitution of India cannot be evoked. There is a growing tendency of approaching to Page 7 of 11 Downloaded on : Sun Sep 17 22:57:01 IST 2023 NEUTRAL CITATION R/CR.MA/5080/2023 JUDGMENT DATED: 23/03/2023 undefined this Court under Article 226 of the Constitution of India inspite of the fact that there is a remedy available under the Civil Procedure Code or Criminal Procedure Code. If the Court questions with respect to the maintainability of the petition in view of the alternate remedy available under the C.P.C. or Cr.P.C. a casual prayer is made to treat the petition under the alternate provisions available under the C.P.C. or Cr.P.C. Now the time has come that, in order to overcome such casual approach, such prayer should not be entertained just for asking. In Durga Prasad v. Navinchandra the Apex Court has noted that when the matter came up for admission, the Court asked the learned Counsel as to how the writ petition is maintainable. As usual, the time was sought to study the matter. On the adjourned date, the Counsel contended that there are three remedies open to the appellant under the C.P.C., the right of appeal under Section 96 or appeal under Order 43 read with Section 104 or a revision under Section 115 of the C.P.C. It was contended that, as the matter does not fall within the four corners of the three remedies, the appellant was left to no other remedy except to approach the High Court under Article 226 of the Constitution of India. The Court found that the impugned order was not appealable either under Section 96 or under Order 43 read with Section 104 of C.P.C. but still the revision was maintainable and whether order could be revised or not, that is a matter to be considered by the High Court on merits. The Apex Court held that the petition under Article 226was not maintainable by passing the alternate remedy available under Section 115 of the C.P.C. The bar of Section 18 will not come in the way if the case calls for judicial scrutiny to the limited extent Page 8 of 11 Downloaded on : Sun Sep 17 22:57:01 IST 2023 NEUTRAL CITATION R/CR.MA/5080/2023 JUDGMENT DATED: 23/03/2023 undefined indicated above.
15. There is also growing tendency to approach to the High Court under Section 438 of the Cr.P.C. for anticipatory bail directly without approaching to the Court of Sessions Judge. It is true that the High Court and the Court of Sessions judge have concurrent jurisdiction under Section 438 of the Cr.P.C. for grant of bail to person apprehending the arrest. But considering the convenience, smooth and effective functioning of the Court, it is always desirable that, at the first instance, the application is made to the Court of Sessions Judge, otherwise, if all the applications under Section 438 are filed before the High Court directly, the police papers will have to be summoned from the various parts of the State, putting the entire police machinery only at the disposal of the High Court for consideration of application under Section
438. On the other hand, if the applicant moves to the Court of Sessions Judge within whose jurisdiction the case has been registered, police papers can be quickly made available. The Public Prosecutor and the police will be able to effectively and quickly assist the Court in consideration of an application under Section 438 of the Cr.P.C. In case the bail application is rejected and the matter comes to the High Court, it would be advantageous for the High Court to not only know the full facts but also the views of the Sessions Judge. In view of this, well established practice in almost all the High Courts is that in the matter of application under Section 438 or 439 of Cr.P.C. the party first approach to the Court of the Sessions Judge. Thus, in my view, the practice of filing the bail application under Section Page 9 of 11 Downloaded on : Sun Sep 17 22:57:01 IST 2023 NEUTRAL CITATION R/CR.MA/5080/2023 JUDGMENT DATED: 23/03/2023 undefined 438 or 439 of the Cr.P.C. straightaway to the High Court without resorting to filing of such applications before the Court of Sessions should not be permitted unless there are exceptional and compelling circumstances."
7.2 In view of the above, I am of the opinion that if the High Court entertain such writ petition, then it will be flooded with such writ petitions and will not be able to do any other work except dealing with such writ petition. Hence, I have held that the petitioner must avail of his alternative remedy to approach the First Appellate Court. In the present case, the petitioner has not approached the concerned First Appellate Court and has directly approached this Court for the aforesaid prayer.
8. The inherent powers under section 482 of the Code of Criminal Procedure or the extraordinary jurisdiction under Article 226 of the Constitution of India include the powers to quash the FIR, investigation or any criminal proceedings pending before the High Court or any court subordinate to Page 10 of 11 Downloaded on : Sun Sep 17 22:57:01 IST 2023 NEUTRAL CITATION R/CR.MA/5080/2023 JUDGMENT DATED: 23/03/2023 undefined it and are of wide magnitude and ramification. In exercise of powers conferred under Article 226 of the Constitution of India read with section 482 of the Code of Criminal Procedure, exercise of inherent powers by the High Court would depend upon the facts and circumstances of each case. It is not permissible to have a straight jacket formula. No precise and inflexible guidelines can be provided. This Court does not find this to be a fit case where discretion under Section 482 of Cr.P.C. could be exercised in favour of the petitioner, as the petitioner herein has not availed the alternative remedy of appeal available to him.
9. For the foregoing reasons, the present petition is rejected with a liberty to file an appeal before the Sessions Court.
Sd/-
(SAMIR J. DAVE,J) MEHUL B. TUVAR Page 11 of 11 Downloaded on : Sun Sep 17 22:57:01 IST 2023