Bombay High Court
Hansil Bharatkumar Saparia vs Vipul Kanjibhai Viradia And Anr on 23 January, 2024
Author: Prakash D. Naik
Bench: Prakash D. Naik
2024:BHC-AS:4584
3-WP-2451-2022.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 2451 OF 2022
WITH
CRIMINAL WRIT PETITION NO. 2461 OF 2022
Hansil Bharatkumar Saparia ...Petitioner
Versus
Falguni Vipul Viradia And Anr. ...Respondents
WITH
CRIMINAL WRIT PETITION NO. 2464 OF 2022
WITH
CRIMINAL WRIT PETITION NO. 2465 OF 2022
Hansil Bharatkumar Saparia ...Petitioner
Versus
Vipul Kanjibhai Viradia And Anr. ...Respondents
WITH
CRIMINAL WRIT PETITION NO. 2463 OF 2022
Hansil Bharatkumar Saparia ...Petitioner
Versus
Falguni Vipul Viradia And Anr. ...Respondents
WITH
CRIMINAL WRIT PETITION NO. 2453 OF 2022
Hansil Bharatkumar Saparia ...Petitioner
Versus
Vipul Kanjibhai Viradia And Anr. ...Respondents
WITH
CRIMINAL WRIT PETITION NO. 2454 OF 2022
Hansil Bharatkumar Saparia ...Petitioner
Versus
Falguni Vipul Viradia And Anr. ...Respondents
....
Mr. Durgesh Jaiswal a/w Mr. Ashish Verma i/by Mr. Dhanraj Lodha
Advocate for the Petitioners in all Writ Petitions.
Mr. Vivek Walvalkar a/w Mr. Amit Shroff i/by Harish Shroff & Co.,
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Advocate for Respondent No.1 in all Writ Petitions.
Mr. Arfan Sait, APP for the Respondent - State.
CORAM : PRAKASH D. NAIK, J.
DATE : 23rd JANUARY, 2024.
P.C.:
1. The Petitioner in all these Petitions challenges the Order
issuing process dated 15th April, 2019 passed by learned 12th Jt.
Civil Judge Senior Division and Additional Chief Judicial Magistrate
for an offence under Section 138 r/w 142 of the Negotiable
Instrument Act (for short 'N.I. Act') and the Order dated 24 th
November, 2021 passed by Sessions Court dismissing the revision
applications preferred by the Petitioner challenging the Order of
process.
2. The Petitions relates to complaints filed by the
Respondent No.1 for offence under Section 138 of N.I. Act.
3. The complaints which are subject matter of challenge in
all these Petitions are C.C. No.14582/2019; C.C. No.14580/2019;
C.C. No.14584/2019; C.C. No.14581/2019; C.C. No.14585/2019;
C.C. No.14583/2019 and C.C. No.14586/2019.
4. The complainant's case is as follows :-
The Accused are in the business of construction of
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buildings. The Accused informed that he has started a project at
village Baner, Pune. The complainant and her family members
wanted to purchase flats. There was meeting between them. The
complainant and family members visited site. The complainant
agreed to purchase the flat at Baner project for Rs.70,00,000/-. The
Accused agreed to hand over the possession of the flat within
stipulated time. 50% of the earnest amount of Rs.35,00,000/- was
taken. The Accused received Rs.15,00,000/- on 1st April, 2013,
Rs.2,75,000/- on 24th July, 2013 by Cheque No.000021 and
000022. The Accused also received Rs.17,25,000/- in cash from
complainant. The Accused did not handover possession of flat. The
Accused issued cheque bearing no.169651 for Rs.10,00,000/-. The
cheque was deposited by the complainant with her banker. It was
dishonoured on 22nd October, 2018 due to 'Insufficient Funds'. The
complainant issued notice dated 19 th November, 2018 demanding
cheque amount. The Accused informed the complainant to
redeposit the cheque. The cheque was again deposited. It was
dishonoured with remarks 'NON CTS' on 10 th January, 2019.
Complaint was filed viz. C.C. No.14582 of 2019. The Accused
issued another cheque dated 20th October, 2018 bearing
no.169655. It was dishonoured with remarks 'Drawers signature
differs' on 22nd October, 2018. Notice was sent on 19 th November,
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2018. Cheque was redeposited. It returned on 10 th January, 2019
with remarks 'NON CTS'. Complaint was filed viz. C.C. No.14580 of
2019. Cheque dated 20th October, 2018 for Rs.5,00,000/- bearing
no.169618 was dishonoured on 22nd October, 2018 with remarks
'Funds Insufficient'. Notice was sent. Cheque was redeposited. It
was dishonoured on 10th January, 2019 with remarks 'NON CTS'.
Notice was sent. Complaint bearing C.C. No.14584 of 2019 was
filed. Cheque dated 20th October, 2018 for Rs.10,00,000/- bearing
no.169652 was dishonoured with remarks 'Funds Insufficient' on
22nd October, 2018. It was redeposited. It was returned on 10 th
January, 2019 with remarks 'NON CTS'. Complaint bearing no.C.C.
No.14581 of 2019 was filed. Cheque dated 20 th October, 2018
bearing no.16953 for Rs.10,00,000/- was issued. It was
dishonoured on 22nd October, 2018 with remarks 'Signature of
drawer differs'. It was redeposited. Cheque was dishonoured on
10th January, 2019 with remarks 'NON CTS'. Complaint was filed
viz. C.C. No.14585 of 2019. Cheque dated 20 th October, 2018
bearing no.169609 for Rs.5,00,000/- was dishonoured on 22 nd
October, 2018 with remarks 'Funds Insufficient'. It was
redeposited. Cheque was dishonoured on 10 th January, 2019 with
remarks 'NON CTS'. C.C. No.14583 of 2019 was filed. Cheque
dated 20th October, 2018 for Rs.10,00,000/- was issued. It was
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dishonoured with remarks 'Signature of drawer differs' on 22 nd
October, 2018. It was redeposited. Cheque was dishonoured with
remarks 'NON CTS' on 10th January, 2019. Complaint bearing no.
C.C. No.14586 of 2019 was filed.
5. The learned Joint C.J.S.D. and Additional C.J.M. issued
process against the Accused under Section 138 r/w 142 of N.I. Act,
vide Order dated 15th April, 2019.
6. The Order issuing process was challenged before the
Sessions Court by preferring revision applications. The learned
Sessions Judge vide Order dated 24th November, 2021 rejected the
application. While rejecting the revision application the learned
Sessions Judge has observed that the Court is required to see while
dealing with an offence under Section 138 of N.I. Act whether the
cheque was issued in due course, whether it was deposited for
encashment within time, whether statutory notice is issued and
whether the persons concerned person has filed to pay the amount
of dishonored cheuque. The complainant had complied all the
procedural safeguards constitute the offence under Section 138 of
the N.I. Act. Whether the Accused was having sufficient balance in
his bank account on which the cheque was drawn or whether the
amount was insufficient has to be decided on merits after allowing
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both the parties to lead their respective evidence. Whether the
dishonor of cheque on the ground of not been in CTS form fall
within the ambit of Section 138 of N.I. Act has to be decided on
merits by allowing both the parties to lead evidence and satisfy the
Court on the law point.
7. Learned Advocate for the Petitioner Mr. Jaiswal
submitted that the prosecution for the offence under Section 138 of
N.I. Act is not maintainable against the Petitioner. It does not satisfy
the requirement of Sections 138 and 142 of N.I. Act. The cheques
were dishonoured with remarks 'NON CTS' and not on account of
'funds insufficient'. The instrument was discontinued from 31 st
December, 2018 as per notification of Reserve Bank of India vide
Circular No. DPSS(CHE)/569/01.02.003/2017-18 dated 21st June,
2018. Referring this circular the Kotak Mahindra Bank issued a
letter to the Petitioner on 28th February, 2020. the illegal instrument
cannot attract legal action. Hence, no offence under Section 138 of
N.I. Act was made out against the Petitioner. Cheques were handed
over as a security which were misused by the complainant. The
Accused had refunded an amount of Rs.23,50,000/- out of
Rs.45,00,000/-. In the light of Section 56 of N.I. Act, the
complainant was required to make an endorsement behind the
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cheque on receipt of the amount of Rs.23,50,000/- as the chques
were in possession of complainant prior to making the part
payment.
8. Learned Advocate for Petitioner has relied upon the
following decisions;
i. Mr. Syed Asim Fardeen S/o SyedKhaja Nasrim V/s The
State of Telangana And Another1
iii. Dashrathbhai Trikambhai Patel V/s. Hitesh Mahendrabhai
Patel & Anr.2
9. Learned Advocate for the Respondent/complainant Mr.
Walavalkar submitted that the proceedings are initiated only to
delay the trial. The Petitioner has urged triable issues. The grounds
are based on disputed question of facts. The complainant has
followed all the mandatory safeguards to initiate action for the
offence under Section 138 of N.I. Act. The chques were issued in
discharge of legally enforceable liability. When the cheques was
deposited for the first time, it were dishonoured with remarks
'Insufficient Funds'. However, when the same cheques were
deposited for the second time, the cheques were not honoured by
the bank with remark 'NON CTS'. The directions issued by the
1 Criminal Petition No.896 of 2022 dated 29th November, 2022.
2 Criminal Appeal No.1497 of 2022 dated 11th October, 2022.
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Reserve Bank of India indicate that Non CTS cheques were valid for
stipulated period. The directions were updated on 31 st October,
2022 which indicate that banks have been advised to issue only
CTS 2010 standard compliant cheques from September 30, 2012.
Earlier, there were separate clearing sessions for non-CTS cheques.
However, they wer discontinued with effect from 31 st December,
2018. As of now, NON-CTS cheques cannot be presented in CTS.
Bank have been advised to withdraw the non-CTS cheuqes from the
customers. However, NON-CTS cheques remain to be valid as a
negotiable instrument. The Accused will have to establish during
the trial whether there was sufficient funds as the same cheque
which was deposited earlier was dishonoured on account of
'Insufficient Funds'. The contention of the Petitioner that the
cheque was issued as security is disputed and it is for the Accused
to prove the defence in the trial. The other contention of the
Petitioner is that an amount of Rs.23,50,000/- was paid and
therefore, in the light of Section 56 of N.I. Act, the cheque ought to
have been entrust in devoid of merits. The disputes that the
amount of Rs.23,50,000/- was related to the liability which is
accrued in respect to the cheques which were deposited and
dishonoured.
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10. Mr. Walawalkar has relied upon decision of Supreme
Court in the case of Laxmi Dyechem V/s. State of Gujarat and
Others3
11. The Sessions Court has considered the grounds urged by
the Petitioner and rejected the revision application by assigning
cogent reasons.
12. It is pertinent to note that the complainant had satisfied
all the requisite procedural safeguards while initiating the
proceedings under Section 138 of N.I. Act. The case of the
complainant is that the cheques were issued in discharge of legally
enforceable liability. Initially the cheques were dishonored with
remarks 'Insufficient Funds'. Subsequently, the bank memo indicate
that the cheques were non-CTS. The same cheques were deposited
for the second time on instructions of the Accused and not suo
moto by the complainant. On account of the requisite circular of
the Reserve Bank of India the cheques were NON-CTS. The Accused
ought not to have insisted complainant to redeposit the cheque.
The learned Sessions Judge has appreciated the grounds and has
assigned reasons while rejecting the revision application. The
grounds urged by the Petitioner stating that the cheques were
issued by way of security and there is non-compliance of Section 56
3 (2012) 13 SCC 375
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will have to be agitated during the trial. Prima facie case is made
out for issuance of process. No case is made out to interference in
the Order issuing process and the Order passed by the Sessions
Court in exercising powers under Section 482 of Code of Criminal
Procedure. Hence, all the Petitions are devoid of merits and
deserves to be dismissed.
ORDER
i. Criminal Writ Petition No.2451 of 2022; Criminal Writ Petition No.2461 of 2022; Criminal Writ Petition No.2464 of 2022; Criminal Writ Petition No.2465 of 2022; Criminal Writ Petition No.2463 of 2022; Criminal Writ Petition No.2453 of 2022 and Criminal Writ Petition No.2454 of 2022 stand dismissed.
ii. The trial is expedited.
(PRAKASH D. NAIK, J.)
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