Naynaben Rameshchandra Javiya vs State Of Gujarat

                                                                                     NEUTRAL CITATION




     R/SCR.A/10888/2021                                 ORDER DATED: 08/08/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/SPECIAL CRIMINAL APPLICATION NO. 10888 of 2021

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                      NAYNABEN RAMESHCHANDRA JAVIYA
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MR TUSHAR L SHETH(3920) for the Applicant(s) No. 1,2
for the Respondent(s) No. 2,2.1,2.2,2.3,2.4,2.5,2.6,2.7
MR SOAHAM JOSHI, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                Date : 08/08/2023

                                 ORAL ORDER

1. By filing this petition, the petitioners have prayed to quash and set aside impugned order dated 26.7.2021 passed by learned Additional Chief Judicial Magistrate, Vankaner, below Exh.100 in Criminal Case No.724 of 2016 and further be pleased to allow the prayers made in aforesaid application.

2. The petitioners are accused nos.1 and 2 in the complaint filed by the complainant under the Negotiable Instruments Act, for dishonour of cheque of Rs.4,17,800/-, which came to be registered as Criminal Case No.724 of 2016. In the statement of the accused, dispute is raised that signature on the cheque is not of accused-Rameshchandra Bhanjibhai Javia and the petitioners have not purchased any goods from the complainant on credit basis and the petitioners are not liable to pay the amount to the complainant. It is also stated by the petitioners that earlier petitioner no.2 was partner in Jayant Oil Mill, however, he is relieved from said firm on 31.3.2000. It is Page 1 of 6 Downloaded on : Sun Sep 17 00:42:55 IST 2023 NEUTRAL CITATION R/SCR.A/10888/2021 ORDER DATED: 08/08/2023 undefined also stated that they have closed down the business of Shiv Industries and Anjali Enterprise and the petitioners were residing at Rajkot and, therefore, books of account, cheque book, slip book, letter pad, bill book, rubber stamp of the firm, etc. were kept by brother of the accused no.2 at Dhoraji for convenience in use. However, brother of accused no.2 has misused cheques of said firm and given cheque to third party for making payment. The petitioners have also filed a complaint being C.R.No.60 of 2006 in this regard. Accordingly, it is stated that the petitioners have not issued any cheque in favour of the complainant. Since the petitioners are disputing signature on the cheque, they have filed an application at Exh.100 in Criminal Case No.724 of 2016 for sending it to hand-writing expert, which came to be dismissed by impugned order dated 26.7.2021. Being aggrieved and dissatisfied with the impugned order, present petition is filed by the petitioners.

3. Heard learned advocate Mr.Tushar Sheth for the petitioners and learned APP, Mr.Soaham Joshi for the respondent-State.

4. Mr.Tushar Sheth, learned advocate for the petitioner has submitted that the order passed below Exh.100 in Criminal Case No.724 of 2016, instituted under Section 138 of the Negotiable Instruments Act, is per se not proper and in accordance with law. He has further submitted that signature of petitioner no.2 is not there on the cheque in question nor writing on the cheque is of the petitioner and, therefore, in absence of any legally enforceable debt, there was no question Page 2 of 6 Downloaded on : Sun Sep 17 00:42:55 IST 2023 NEUTRAL CITATION R/SCR.A/10888/2021 ORDER DATED: 08/08/2023 undefined of issuing any cheque to the complainant and, therefore, ingredients of Section 138 of the Negotiable Instruments Act are prima facie not satisfied. He submitted that, therefore, the order passed by learned trial Court below Exh.100 is per se is not in accordance with law and no harm will be caused if opinion of hand-writing expert regarding signature on the cheque is sought for, as prayed in that application. He submitted that learned trial Court has committed an error by considering the application mainly on the ground that the application is filed at belated stage and with a view to delay further proceedings. He has also submitted that learned trial Court has committed an error on fact as well as on law because the defence of the petitioner is that he has never signed the cheque and, therefore, there is no harm in sending the cheque for the opinion of hand-writing expert. He has submitted that on the contrary this would help the trial Court in deciding the controversy involved in present case. He has further submitted that learned trial Court has wrongly referred to the observations made by the Court in a civil dispute, as the criminal proceedings and civil proceedings are different and the observations made in civil trial cannot be relied upon for considering the application or any issue involved in criminal trial. He has, therefore, submitted that present application is required to be allowed by quashing and setting aside the impugned order passed below Exh.100 in Criminal Case No.724 of 2016 by exercising powers under Articles 226 and 227 of the Constitution of India read with Section 482 of the Criminal Procedure Code. In support of his submissions, he has relied upon following decisions:-

NEUTRAL CITATION R/SCR.A/10888/2021 ORDER DATED: 08/08/2023 undefined

(i) T.Nagappa v. Y.R.Muralidhar reported in (2008) 5 SCC 633

(ii) Kalyani Baskar (Mrs.) v. M.S. Samppornam (Mrs.) reported in (2007) 2 SCC 258

5. Per contra, Mr.Soaham Joshi, learned APP has strongly opposed the submissions made by present petitioners and submitted that the application is filed by the present petitioners at a belated stage as the criminal case is filed in 2005 and present application is filed in 2016. He has submitted that process is issued in criminal case in 2005, while present application below Exh.100 is filed in the year 2016, which is at belated stage and, by this time, trial has proceeded further and the trial Court has kept the matter for final arguments as the statement of the accused under Section 313 of Criminal Procedure Code is recorded in January 2019. He has further submitted that learned trial Court has also rightly considered the fact that Special Civil Suit No.1 of 2017, which is filed in connection with same transaction, is decreed and the Court has presumed that signature on the cheque is of present petitioner. He has submitted that, therefore, learned trial Court has rightly rejected application Exh.100 at this stage. He has submitted that, in view of all these facts, no interference is called for in the present petition in exercise of powers under Articles 226 and 227 of the Constitution of India or under Section 482 of the Criminal Procedure Code.

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6. I have considered rival submissions made at bar by both the sides. I have also considered the fact that proceedings of the trial Court are concluded. Moreover, the Civil Court has also taken cognizance of signature on the cheque and has decreed the suit by finding that signature on the cheque is of the petitioner. Considering the totality of facts and circumstances of the case, as the trial could not be completed due to pendency of present proceedings, it cannot be said to be a justifiable reason to grant relief in favour of the petitioner.

7. There is no dispute about the ratio laid down in the case of T.Nagappa (supra), more particularly as held in paragraphs 9 and 11, however, conduct of the present petitioners is required to be taken into consideration. Criminal case is filed in the year 2005 and process was also issued in 2005. The issue raised by the petitioners should have been raised much earlier and they should not have waited till 2016 to raise the issue that signature on the cheque is not of the petitioner no.2. Proceedings of the trial are concluded and even statement of the accused under Section 313 of the Criminal Procedure Code is also recorded and the matter is kept for final arguments. At this stage, application Exh.100 is given by the petitioners. Therefore, aforesaid judgment is not helpful to the petitioners in the facts of present case. On the contrary, observations made in the aforesaid decision about fair trial are required to be considered, as the complainant could not get the fruits of his complaint for last more than 15 years. Similarly, judgement in the case of Kalyani Baskar (Mrs.) (supra) is on similar line and the same is not required to be discussed in detail.

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8. In view of above discussion, I am of the opinion that learned trial Court has not committed any error in passing the impugned order below Exh.100 in Criminal Case No.724 of 2016 and, therefore, inherent powers of this Court are not required to be exercised. The trial Court has given proper and sufficient findings for rejecting the application of the present petitioners. Therefore, present petition is found meritless and the same is required to be dismissed. Accordingly, present petition is dismissed.

(SANDEEP N. BHATT,J) R.S. MALEK Page 6 of 6 Downloaded on : Sun Sep 17 00:42:55 IST 2023