Gujarat High Court
Sanjida Shumall Khanam vs State Of Gujarat on 1 March, 2024
NEUTRAL CITATION
R/SCR.A/2825/2024 ORDER DATED: 01/03/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 2825 of 2024
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SANJIDA SHUMALL KHANAM
Versus
STATE OF GUJARAT & ANR.
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Appearance:
ANKIT N DIWANJEE(8683) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MS DP JHALA, APP ` for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 01/03/2024
ORAL ORDER
1. Rule. Learned APP waives service of notice of rule on behalf of respondent-State.
2. By way of the present petition, the petitioner is seeking following reliefs:
"(A) ALLOW the present Petition;
(B) QUASH AND SET-ASIDE the Final Order and Judgment dated 3/1/2024 passed by the Learned 3rd Additional District and Sessions Judge, Gandhinagar in Criminal Revision Application No. 90 of 2023;
(C) QUASH AND SET-ASIDE the Order dated 7/12/2022 passed by the Learned 4th Additional Civil Judge and Judicial Magistrate First Class, Gandhinagar in Criminal Case No. 6272 of 2022 wherein summons were issued against the Petitioner;Page 1 of 11 Downloaded on : Mon Mar 04 20:40:39 IST 2024
NEUTRAL CITATION R/SCR.A/2825/2024 ORDER DATED: 01/03/2024 undefined (D) ORDER that pending hearing and final disposal of this Petition the proceedings of the Criminal Case No. 6272 of 2022 filed against the Petitioner by Respondent No. 2 pending before the Learned 6th Additional Civil Judge and Judicial Magistrate First Class, Gandhinagar (on the date of filing this present Petition) be stayed;
(E) CALL FOR the Record and Proceedings of Criminal Case No. 6272 of 2022 pending before the Learned 6th Additional Civil Judge and Judicial Magistrate First Class, Gandhinagar (on the date of filing this present Application);
(F) GRANT ex-parte, ad-interim reliefs in terms of prayer '(D)' to the Petitioner;"
3. It is the case of the petitioner that the petitioner has challenged the judgment and order dated 03.01.2024 passed by the learned 3rd Additional District and Sessions Judge, Gandhinagar in Criminal Revision Application No. 90 of 2023 wherein the Revisional Court dismissed the Revision Application as well as order dated 07.12.2022 passed by the learned 4th Additional Civil Judge and Judicial Magistrate First Class, Gandhinagar in Criminal Case No. 6272 of 2022, wherein the learned Trial Court was pleased to issue summons against the petitioner arrayed as Accused Nos. 1 and 2 in the said Complaint. Page 2 of 11 Downloaded on : Mon Mar 04 20:40:39 IST 2024
NEUTRAL CITATION R/SCR.A/2825/2024 ORDER DATED: 01/03/2024 undefined It appears that petitioner is a female and the present complaint is filed with a view to harass her and extort illegal monies from her. It appears that she is the sole breadwinner of her family wherein her husband is a cancer patient, who is under regular treatment, due to which he has been unable to work since 2014 and her children are studying in college. It is further alleged that complaint has been filed for alleged dishonour of a cheque, which alleged to have been drawn by the petitioner in favour of Respondent No. 2 and the alleged cheque have been dishonoured on 30.09.2022 as mentioned in the said Complaint. The petitioner has been mentioned as both Accused No. 1 as well as Accused No. 2 in the said complaint, wherein separate addresses of the petitioner has been mentioned against each accused. Respondent No. 2 alleges to have sent the petitioner a legal notice dated 25.10.2022, and the demand notice has been submitted along with the said complaint. The demand notice, after mentioning the alleged reason for filing the said complaint, U/Sec 138 of N.I. act on its last page calls for the petitioner to inter alia further make payment of an omnibus claim amount of 14,07,592/- within the time period of 7 (Seven) days from the date of receiving the demand notice. It appears that Respondent Page 3 of 11 Downloaded on : Mon Mar 04 20:40:39 IST 2024 NEUTRAL CITATION R/SCR.A/2825/2024 ORDER DATED: 01/03/2024 undefined No. 2, in Paragraph No. 5 of the demand notice clearly mentions that the cheque which has been allegedly dishonoured was drawn for Rs.9,80,000/-, despite mentioning this, Respondent No. 2, through the demand notice, has called for repayment of an omnibus amount of Rs.14,07,592/- without mentioning the calculation through which the said figure is reached by complainant. It is prima facie evident that the demand notice has been issued by Respondent No. 2 to Noticee Nos. 1 & 3 therein, who is not even the signatory of the allegedly dishonoured cheque and the name of the said Noticee is not even mentioned as the account holder on the allegedly dishonoured cheque. The demand notice does not make any demand towards repayment of the amount of the allegedly dishonoured cheque but simply makes claim of an omnibus amount of 14,07,592/- . Vide the demand notice, respondent No. 2 has also sought to invoke various provisions such as inter alia Sections 120 (B), 379, 406 and 420 of The Indian Penal Code, 1860. The demand notice has been given with a flawed understanding of the concept of a valid demand notice to be issued under Section 138 (b) of the NI Act. Hence, the present petition is filed.
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4. Learned advocate for the petitioner has submitted that the Revisional Court has not considered the fact that the amount of the alleged dishonour of cheque is Rs.9,80,000/-, whereas the demand notice in the said complaint ask for repayment of an omnibus claim amount of Rs.14,07,592, whereby the demand notice is rendered defective and illegal. It is further submitted that the demand notice in the said complaint gives only 7 days time to the petitioner for the repayment of an omnibus claim, whereby the demand notice is rendered defective and illegal. 4.1. Learned advocate has mainly submitted that has mainly submitted that the notice is invalid and the learned Trial Court as well as the Revisional Court has committed an error and he has requested to allow the present petition and mainly he has relied on various decisions of Hon'ble Apex Court in case of (i) Arihant Fertilizers Ltd. Indore vs. Rahul Builders and anr. reported in [2005(3) M.P.L.J.] (ii) Rahul Builders vs. Arihant Fertilizers & Chemicals and Another reported in (2008) 2 SCC 321.
5. Learned APP has vehemently opposed the petition and has Page 5 of 11 Downloaded on : Mon Mar 04 20:40:39 IST 2024 NEUTRAL CITATION R/SCR.A/2825/2024 ORDER DATED: 01/03/2024 undefined submitted that the learned Trial Court has appropriately ordered to issue summons, which is in accordance with law and the composite notice is valid in under the law. Hence, he has requested to dismiss the present petition.
6. Having heard the learned advocates for the respective parties and having gone through the materials available on record, it appears that the complaint is filed at the instance of respondent No.2. It is not in dispute that the impugned cheque have been drawn by the present petitioner in favour of the respondent No.2 and the same is dishonoured on 30.09.2022 only dispute raised qua present petitioner is that the demand notice issued by the respondent No.2 is for making the payment claim of Rs.14,07,592/- and the demand is omnibus claim, while cheque is issued for the dishonour of Rs.9,80,000/- . Going through the demand notice, which is produced at Anenxure-E, in para 5 clearly mentioned that the cheque was withdrawn for Rs.9,80,000/- and the said cheque came to be dishonoured. The intention of the notice is to make good to a drawer for making the payment to avoid the criminal liability as the proceedings under Section 138 is quasi criminal in nature. In the case of P. Page 6 of 11 Downloaded on : Mon Mar 04 20:40:39 IST 2024 NEUTRAL CITATION R/SCR.A/2825/2024 ORDER DATED: 01/03/2024 undefined Mohanraj vs. M/s. Shah Brothers Ispat Pvt. Ltd. reported in (2021) 6 SCC 258, it is observed and held by the Hon'ble Supreme Court that proceeding of section 138 of the NI Act is quasi criminal in nature and can be called a "civil sheep" in a "criminal wolf's clothing". The very purpose of the issuance of the notice is to avoid the criminal prosecutions as petitioner was aware of and the said aspect is also discussed by the Hon'ble Apex Court. 6.1. So far as question of the learned advocate's reliance on the decisions of the Hon'ble Apex Court in case of Arihant Fertilizers Ltd. Indore (supra) and Rahul Builders (supra) is concerned, considering the facts of the case, it appears that the decisions relied on by the learned advocate for the petitioner is not helpful in favour of the present petitioner. In this regard, this Court deems it fit to refer the decision of the Hon'ble Apex Court in case of M/s. Iveco Magirus Brandschutztechnik GmbH Vs. Nirmal Kishore Bhartiya & Anr. reported in (2024) 2 SCC 86, wherein the Hon'ble Apex Court has observed as under :
"F. While deciding the cases on facts, more so in criminal cases, the Courts should bear in mind that each case must rest on its own facts and the similarity of facts in one case cannot be used to bear in mind the conclusion of fact in another case."Page 7 of 11 Downloaded on : Mon Mar 04 20:40:39 IST 2024
NEUTRAL CITATION R/SCR.A/2825/2024 ORDER DATED: 01/03/2024 undefined 6.2. Herein notice, the detailed calculation of break-up of Rs.9,80,000/- came to be given. Perusing the notice, it appears that notice is also combined notice for about offences under the provisions of IPC. The said statutory notice is issued under Section 138 of the N.I. Act along with other offences under Sections 420, 406, 114 and 120B of the IPC. It is needless to say that the simultaneous proceedings are not prohibited. Herein the prosecution is filed only under Section 138 of the NI Act and the substantial compliance of Section 138(B) is for issuance of the statutory notice and failing which, for making the payment, the complaint came to be filed and while taking the cognizance, the learned Trial Court has taken into consideration the entire fact. In this aspect, reference is required to be made in case of Suman Sethi vs. Ajay K. Churiwal and Anr. reported in (2000) 2 SCC 380, wherein, it is clearly observed that "whether the notice is bad would depend on the language of the notice. If in a notice while giving the break up of the claim the cheque amount, interest, damages etc. are separately specified, other such claims for interest, cost etc. would be superfluous and these additional claims Page 8 of 11 Downloaded on : Mon Mar 04 20:40:39 IST 2024 NEUTRAL CITATION R/SCR.A/2825/2024 ORDER DATED: 01/03/2024 undefined would he severable- and will not invalidate the notice. If, however, in the notice an ommbus demand is made without specifying what was due under the dishonored cheque, notice might well fail to meet the legal requirement and may be regarded as bad." In the present case the fact remains that the amount under cheque was Rs.9,80,000/- and notice was issued qua dishonour of the cheque of Rs.9,80,000/- and the complaint for the same amount has been filed. It is said that initiation of the proceedings under the IPC Act and the legal action i.e. civil and criminal action qua recovery of Rs.14,07,592/- and to return the goods. Thus, it appears that two separate cause clearly mentioned and there is no any misconception on the part of that thus, the notice was not only issued for dishonour of cheque but also for committing an offence and the breach of the contract, notice is issued and two separate causes are also mentioned and there is no prejudice.
6.3. Further, In case of Suman Sethi(supra), wherein, it is observed that "This Court had occasion to deal with Section 138 of the Act in Central Bank of India & Anr. v. M/s. Saxons Farms & Ors., JT (1999) 8 SC 58 and held that the object of the notice is to give a Page 9 of 11 Downloaded on : Mon Mar 04 20:40:39 IST 2024 NEUTRAL CITATION R/SCR.A/2825/2024 ORDER DATED: 01/03/2024 undefined chance to the drawer of the cheque to rectify his omission. Though in the notice demand for compensation, interest, cost etc. is also made drawer will be absolved from his liability under Section 138 if he makes the payment of the amount covered by the cheque of which he was aware within 15 days from the date of receipt of the notice or before complaint is filed."
6.4. A bare reading of provisions and objection of issuance of notice, it appears that demand of cheque amount is same in notice and in complaint is also same, which fulfills requirement under Section Section 138 of N.I. Act proceedings. Other reference of IPC offences are discernible and separate demand is also there and there is no any prejudice caused to accused. Herein clear demand notice with specific amount of cheque and the same in the complaint, merely mentioning such same amount i.e. Rs.9,80,000/- with further clarification is breakup is not omni demand in further part, additional notice qua civil and criminal proceedings and amount reference being made that is also clear and differentiated under the separate enactment and amount Under Section 138 of NI Act notice is same and clearly stated in complaint itself, which itself would not make it invalid. Page 10 of 11 Downloaded on : Mon Mar 04 20:40:39 IST 2024
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7. In view of the above,no case is made out to entertain this petition at this stage. Hence, the present petition is dismissed. Rule is discharged.
8. However, it would be open for the petitioner to raise all the contentions during the course of the trial qua legally enforceable debt under the impugned cheque and the learned Trial Court shall have to decide independently on its own merits.
(HASMUKH D. SUTHAR,J) KUMAR ALOK Page 11 of 11 Downloaded on : Mon Mar 04 20:40:39 IST 2024