Gujarat High Court
Safvan Mohammad Salim Sheikh vs Aadil Salim Mansuri on 13 December, 2023
NEUTRAL CITATION
R/CR.MA/22040/2023 ORDER DATED: 13/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE FIR/
ORDER) NO. 22040 of 2023
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SAFVAN MOHAMMAD SALIM SHEIKH
Versus
AADIL SALIM MANSURI
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Appearance:
SIDDHARTH R KHESKANI(9483) for the Applicant(s) No. 1
for the Respondent(s) No. 1
MS DP JHALA, APP for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 13/12/2023
ORAL ORDER
1. By way of the present application, the applicant is seeking following reliefs:
"A. To allow this Application.
B. To quash and set aside the judgement and order dated 06.10.2023 passed in Criminal Case No.148244 of 2021 by the Hon'ble Additional Chief Metropolitan Magistrate, Court No.30, NI Act Court, Ahmedabad, convicting the petitioner for offence under Section 138 of the NI Act.
C. Pending admission, hearing, the issuance of notice, final hearing and disposal of this petition, to stay the judgement and order dated 06.10.2023 passed in Criminal Case No.148244 of 2021 by the Hon'ble Additional Chief Metropolitan Magistrate, Court No.30, NI Act Court, Ahmedabad, convicting the petitioner for offence under Section 138 of the NI Act.Page 1 of 5 Downloaded on : Wed Dec 20 20:30:47 IST 2023
NEUTRAL CITATION R/CR.MA/22040/2023 ORDER DATED: 13/12/2023 undefined D. To dispense with the office objections raised in the present petition.
E. To pass any other and further orders as may be deemed fit and proper in the interest of justice."
2. Learned advocate for the petitioner has submitted that A flat by paying earnest money in the scheme namely Sunflower Enclave situated at Sarkhej, Vejalpur, Ahmedabad, had been booked by the original Complainant. Thereafter, the payment was not made and therefore, no sale deed has been executed. Thereafter the Company namely M/s. Sunflower Infrastructure Pvt. Ltd had issued Cheque No. 000115 dated 02.09.2021 drawn from DCB Bank Ltd., Sarkhej Branch, Ahmedabad for an amount of Rs. 1,50,000/- in the name of original Complainant and the cheque was deposited and was returned unpaid via written memo dated 13.09.2021 with an endorsement "payment stopped by the drawer". Thereafter, in the return of the cheque, the Complainant i.e. the Respondent No. 1 herein, issued statutory notice dated 06.10.2021 under Section 138 of the NI Act for return of aforesaid cheque. But the petitioner did not reply to the said notice and no payment was made to the complainant. Therefore, the impugned complaint being Criminal Case No. 148244 of 2021 pending before learned Additional Chief Metropolitan Magistrate, Court No.30, NI Act Court, Ahmedabad was filed under Section 138 of the Negotiable Instruments Act, 1881. Subsequently, learned Metropolitan Chief Magistrate, Ahmedabad, N.I. Act , Court Page 2 of 5 Downloaded on : Wed Dec 20 20:30:47 IST 2023 NEUTRAL CITATION R/CR.MA/22040/2023 ORDER DATED: 13/12/2023 undefined No.30 has passed conviction order dated 06.10.2023, whereby the present petitioner has been convicted for the offence under Section 138 of the N.I. Act.
2.1. Learned advocate for the applicant has submitted that the applicant has assailed the judgment and order of conviction and sentence passed by the learned Magistrate before the learned Trial Court, which is pending adjudication.
3. Learned APP has vehemently opposed the present application.
4. Considering the facts of the case, it appears that though the matter before the learned City Sessions Court is pending for adjudication, though the petitioner has approached this Court by preferring the present petition.
5. Considering the law laid down by this Court in the case of Bhoomi Exim & Anr. Vs. State of Gujarat & Anr. (SCR.A/12711/2023, dated 07.10.2023); decision of Hon'ble Supreme Court in the case of Arun Shankar Shukla vs. State of U.P & Ors. reported in (1999)6 SCC 146 and in the case of Hamida Vs. Rashid alias Rasheed and Ors. reported in (2008) 1 SCC 474 as also considering the fact that the petitioner has availed the statutory remedy and as the offence is compoundable under Section 147 of the NI Act, if the petitioner wants to compound the offence then he ought to have proceed with the criminal appeal before the learned City Sessions Court and therefore, this Court is not inclined to Page 3 of 5 Downloaded on : Wed Dec 20 20:30:47 IST 2023 NEUTRAL CITATION R/CR.MA/22040/2023 ORDER DATED: 13/12/2023 undefined entertain the present petition at this stage. The Hon'ble Apex Court in the case of Hamida (Supra) has been pleased to observe in paragraph Nos.6 and as under:
"6. We are in agreement with the contention advanced on behalf of the complainant appellant. Section 482 Cr.P.C. saves the inherent powers of the High Court and its language is quite explicit when it says that nothing in the Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under the Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. A procedural Code, however exhaustive, cannot expressly provide for all time to come against all the cases or points that may possibly arise, and in order that justice may not suffer, it is necessary that every court must in proper cases exercise its inherent power for the ends of justice or for the purpose of carrying out the other provisions of the Code. It is well established principle that every Court has inherent power to act ex debito justitiae to do that real and substantial justice for the administration of which alone it exists or to prevent abuse of the process of the Court. As held by the Privy Council in Emperor v. Khwaja Nazir Ahmad AIR 1945 PC 18 with regard to Section 561-A of the Code of Criminal Procedure, 1898 (Section 482 Cr.P.C. is a verbatim copy of the said provision) gives no new powers. It only provides that those which the Court already inherently possesses shall be preserved and is inserted, lest it should be considered that the only powers possessed by the Court are those expressly conferred by the Code and that no inherent power had survived the passing of the Act."
7. It is well established principle that inherent power conferred on the High Courts under Section 482 Cr.P.C. has to be exercised sparingly with circumspection and in rare cases and that too to correct patent illegalities or when some miscarriage of justice is done. The content and scope of power under Section 482 Cr.P.C. were examined in considerable detail in Madhu Limaye v. State of Maharashtra AIR 1978 SC 47 and it was held as under :
"The following principles may be stated in relation to the exercise of the inherent power of the High Court - (1) That the power is not to be resorted to if there is a specific provision Page 4 of 5 Downloaded on : Wed Dec 20 20:30:47 IST 2023 NEUTRAL CITATION R/CR.MA/22040/2023 ORDER DATED: 13/12/2023 undefined in the Code for the redress of the grievance of the aggrieved party;
(2) That it should be exercised very sparingly to prevent abuse of process of any Court or otherwise to secure the ends of justice; (3) That it should not be exercised as against the express bar of law engrafted in any other provision of the Code."
6. In view of above settled position of law, present petition is dismissed. However, if the parties appear before the learned Trial Court then the concerned Court shall expedite the hearing / proceeding of Criminal Appeal filed by the petitioner.
7. With above observations, present petition is dismissed at this stage.
8. Petitioner is at liberty to avail statutory remedy available under the law.
9. It is made clear that this Court has not examined the merits of the case.
(HASMUKH D. SUTHAR,J) KUMAR ALOK Page 5 of 5 Downloaded on : Wed Dec 20 20:30:47 IST 2023