Gujarat High Court
Bhikhabhai Laljibhai Patel vs State Of Gujarat on 28 April, 2023
R/CR.MA/307/2014 JUDGMENT DATED: 28/04/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 307 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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BHIKHABHAI LALJIBHAI PATEL
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR R.K.MANSURI(3205) for the Applicant(s) No. 1
MR HK PATEL, ADDL. PUBLIC PROSECUTOR for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 28/04/2023
ORAL JUDGMENT
1. By way of this petition filed u/s 482 of the Code of Criminal Procedure (in short "the Code"), the petitioner seeks to quashment of the complaint being Criminal Case No.656 of 2013 Page 1 of 10 Downloaded on : Mon May 01 20:47:15 IST 2023 R/CR.MA/307/2014 JUDGMENT DATED: 28/04/2023 lodged with the learned JMFC, Vadali filed u/s 138 of the Negotiable Instrument Act (in short "NI Act").
2. Brief facts of the case are that respondent No.2 Patel Davabhai, who is original complainant has filed criminal case on 5.9.2013 u/s 138 of the NI Act before the learned JMFC, Vadali inter alia on the ground that the complainant and the present petitioner belongs to same community and were knowing each other. Both used to visit each other frequently and as such they came in touch and have developed good relation. Therefore, prior to filing of the complaint, the petitioner has advanced Rs.3,50,000/- from the complainant under the good relationship and as such, the petitioner has borrowed Rs.3,50,000/- from the complainant. To repay the said amount, the petitioner has issued cheque No.001971 payable from the account maintained with Khedbrahma Nagrik Sahkari Bank Limited, Hatharwa dated 3.7.2013. The complainant under the instruction of the petitioner deposited said cheque in the SBI, Hatharwa branch. The said cheque came unpaid on 14.7.2013 with the endorsement "Fund Insufficient". Therefore, the complainant issued statutory notice u/s 138(B) of the NI Act and since the notice was not complied with in letter and spirit and the petitioner did not pay the amount of Rs.3,50,000/- claimed in the statutory notice, neither replied to the statutory notice, upon completion of the statutory time period, the complainant has filed criminal complaint u/s 138 of the NI Act before the learned JMFC, Vadali, which was initially registered as Inquiry Case No.31 of 2013, whereby the learned JMFC after verification of the complaint, passed an order on 12.10.2013 in inquiry and Page 2 of 10 Downloaded on : Mon May 01 20:47:15 IST 2023 R/CR.MA/307/2014 JUDGMENT DATED: 28/04/2023 ordered to registered criminal complaint u/s 138 of the NI Act and has issued process to the present petitioner. Being aggrieved, the petitioner has preferred this petition.
3. On 9.1.2014, this Court has issued notice returnable on 7.2.2014 and granted interim relief in terms of para 9(B). Though served, the respondent No.2 has chosen not to appear and hence, on 14.8.2014, this Court has issued Rule and extended the ad interim relief till further orders.
4. Learned advocate Mr. RK Mansuri appearing for the present petitioner mainly argued that the original complainant has made false statement before the learned trial Court that cheque in question was returned unpaid because of fund insufficient. He would further argue that the present petitioner has wrote a letter to the SBI, Hatharwa branch and asked for the reason for cheque being returned. Pursuant to such query from the petitioner, the SBI, Hatharwa branch has given notice that the Khedbrahma Nagrik Sahkari Bank Limited in which the petitioner accused has maintained his account has been changed and because of that, the cheque was returned to the Hatharwa branch of SBI. Upon such, submission, he would further submit that Janta Sahkari Bank Limited, Pune, in which Khedbrahma Nagrik Sahkari Bank Limited has been merged has also given a letter in favour of the petitioner stating that since the KYC of the present petitioner is not completed, his account being No.14082 opened subsequent to merger of Khedbrahma Nagrik Sahkari Bank Limited is not made operational.
Page 3 of 10 Downloaded on : Mon May 01 20:47:15 IST 2023R/CR.MA/307/2014 JUDGMENT DATED: 28/04/2023 Therefore, learned advocate Mr. Mansuri submitted that if such fact was brought to the notice of the learned trial Court, no process would have been issued against the present petitioner as ingredients to offence punishable u/s 138 is not attracted. But, since the original complainant has suppressed the material facts and has obtained the process from the learned trial Court, it is sheer abuse of process of law and the same is required to be quashed and set aside in exercise of jurisdictional power u/s 482 of the Code.
4.1 Learned advocate Mr. Mansuri would further submit that in view of the letter issued by the Janta Sahkari Bank Limited dated 18.12.2013, it becomes clear that Khedbrahma Nagrik Sahkari Bank Limited merged into Janta Sahkari Bank Limited on 29.3.2012 and therefore, there is no question of issuing cheque of Khedbrahma Nagrik Sahkari Bank Limited in July, 2013 to the complainant and therefore, it is clear that the cheque given is one year old and has not been presented for encashment within the six months from the date of issuance and therefore also, on this ground, the complaint is required to be quashed and set aside.
4.2 Upon such submission, learned advocate Mr. Mansuri has submitted to allow this petition and to quash and set aside the complaint filed before the learned JMFC, Vadali.
4.3 In support of his submission, learned advocate Mr. Mansuri has relied upon judgment of the Hon'ble Apex Court in Page 4 of 10 Downloaded on : Mon May 01 20:47:15 IST 2023 R/CR.MA/307/2014 JUDGMENT DATED: 28/04/2023 case of Jugesh Sehgal Vs. Shamsher Singh Gogi reported in (2009) 14 SCC 683.
5. Since respondent No.2 though served, remained absent, there is no submission on behalf of respondent No.2.
6. As far as learned APP is concerned, he would submit that the petitioner, who has been served with statutory notice, was required to raise all these contentions/defence at the first instance in reply to the statutory notice, but the petitioner has failed to raise such grievance at the first instance in reply to the notice and therefore, the submission raised by learned advocate Mr. Mansuri at the most can be counted as a disputed question of defence, which can be tested during the trial of the criminal case, however, the same can never be considered as a ground for quashing the complaint exercising jurisdiction u/s 482 of the Code.
6.1. Upon such submission, he urged to dismiss the petition.
7. Having heard rival submissions of both the learned advocates, at the outset, it can be noted that the petitioner, who is accused in the criminal case filed u/s 138 of the NI Act, has never raised any defence at the first instance in reply to the statutory notice given by the complainant. It is not the case of the petitioner that he has not been served with statutory notice u/s 138(B) of the NI Act demanding amount of the cheque under Page 5 of 10 Downloaded on : Mon May 01 20:47:15 IST 2023 R/CR.MA/307/2014 JUDGMENT DATED: 28/04/2023 the reason that said cheque has been returned unpaid due to "Fund Insufficient" stated by the SBI in bank return memo. The petitioner who is accused in the criminal case has to raise his defence in reply to the statutory notice. The statutory notice has its own importance and more particularly, in view of the principal of reverse burden envisaged u/s 118 and 139 of the NI Act. Since, it is undisputed that the cheque is signed by the accused, it is the bounden duty of the accused to explain that under what circumstances, he has signed the cheque and handed over to the complainant and further, he has to explain that said cheque was not issued towards legally enforceable debt. Sections 118 and 139 of the NI Act precisely demand so from the accused. The accused was at opportunity to explain all the aspects which he has raised in this petition at the first instance by replying to the statutory notice. When, this question was put to learned advocate Mr. Mansuri appearing on behalf of the petitioner, he has no answer to such question and has fairly conceded that the present petitioner has not replied to the statutory notice issued by the complainant.
7.1 At this juncture, I may refer to judgment of the Hon'ble Apex Court in case of HMT Watch Limited Vs. M.A. Abida and another reported in 2015(11) SCC 776, wherein para, 10, 11 and 12, the Hon'ble Apex Court has observed following:-
"10. Having heard learned counsel for the parties, we are of the view that the accused (respondent no.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 Page 6 of 10 Downloaded on : Mon May 01 20:47:15 IST 2023 R/CR.MA/307/2014 JUDGMENT DATED: 28/04/2023 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 Section 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 N.I. Act stood uncomplied, even though the respondent no.1 (accused) had admitted that he replied the notice issued by the complainant. Also, the fact, as to whether the signatory of demand notice was authorized 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.
11. In Suryalakshmi Cotton Mills Limited v. Rajvir Industries Limited and others, this Court has made following observations explaining the parameters of jurisdiction of the High Court in exercising its jurisdiction under Section 482 of the Code of Criminal Procedure: -
"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.
xxx xxx xxx
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 [pic]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 Page 7 of 10 Downloaded on : Mon May 01 20:47:15 IST 2023 R/CR.MA/307/2014 JUDGMENT DATED: 28/04/2023 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 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.'
12. In Rallis India Limited v. Poduru Vidya Bhushan and others, this Court expressed its views on this point as under:-
"12. At the threshold, the High Court should not have interfered with the cognizance of the complaints having been taken by the trial court. The High Court could not have discharged the respondents of the said 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 was the date when the earlier partnership was dissolved and since what date the respondents ceased to be the partners of the firm."
In view of the law laid down by this Court as above, in the present case High Court exceeded its jurisdiction by giving its opinion on disputed questions of fact, before the trial court.
8. Undisputedly, all the contentions raised by the petitioner herein above are disputed issues and there the question of fact would be determined by the learned trial Court after recording evidence. Whether Khedbrahma Nagrik Sahkari Bank Limited in which the petitioner has maintained his account was merged with Janta Sahkari Bank Limited and the clearing house was not aware of the said aspect or whether the cheque has not been returned for the purpose of "Fund Insufficient" are all disputed Page 8 of 10 Downloaded on : Mon May 01 20:47:15 IST 2023 R/CR.MA/307/2014 JUDGMENT DATED: 28/04/2023 questions of fact and can be decided after recording the evidence. When the learned trial Court has issued process, before the learned trial Court it was on bank return memo, which was indicated that the cheque in question was returned unpaid due to "Fund Insufficient" and upon such, the learned trial Court has issued process against the petitioner accused. In this given facts and circumstances, this Court cannot come to the conclusion that prima facie case is not made out and that too under extraordinary jurisdiction vested in section 482 of the Code.
9. As observed herein above, that even if the defence of the petitioner accused appears to be plausible, it should not be taken into consideration in exercise of jurisdiction vested u/s 482 of the Code. Under section 482 of the Code, this Court is prevented from entering into the disputed question of fact at the stage of issuance of process and at threshold, this Court cannot quash the complaint believing the defence of the accused. It is settled principle of law that power u/s 482 which is extraordinary in nature should be used sparingly [See State of Punjab v/s Davinder Pal Singh Bhullar reported in (2011) 14 SCC 770]
10. For the foregoing reasons, present petition is bereft on merit and deserves to be dismissed and accordingly it is dismissed. Rule discharged. Interim relief granted earlier stands vacated forthwith.
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11. Since Criminal Case No.656 of 2013 is filed u/s 138 of the NI Act, in view of the time limit settled in the scheme of law for disposal of the case, this Court expect that the learned trial Court shall adhere to the time limit scrupulously.
(J. C. DOSHI,J) SHEKHAR P. BARVE FURTHER ORDER After pronouncement of the judgment, learned advocate Mr. Mansuri requests to stay implementation and execution of the proceedings in the matter for four weeks to prefer appeal against the order. Since the challenge was made to issuance of process in criminal case under Section 138 of the N.I.Act, which is pending for trial since 2013, I am not inclined to grant the request. Accordingly request is rejected.
(J. C. DOSHI,J) SHEKHAR P. BARVE Page 10 of 10 Downloaded on : Mon May 01 20:47:15 IST 2023