Ridhdhesh Pankajkant Joshi vs State Of Gujarat

                                                                                    NEUTRAL CITATION




     R/CR.MA/5734/2023                                 ORDER DATED: 02/11/2023

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
                   FIR/ORDER) NO. 5734 of 2023

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                         RIDHDHESH PANKAJKANT JOSHI
                                    Versus
                              STATE OF GUJARAT
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Appearance:
SHRIKAR H BHATT(2573) for the Applicant(s) No. 1
for the Respondent(s) No. 2
PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM:                   HONOURABLE MR. JUSTICE J. C. DOSHI
                              Date : 02/11/2023
                               ORAL ORDER

Rule. Learned APP waives service of rule for the Respondent- State.

1. By way of this application, filed under Section 482 of the Code of Criminal Procedure, 1973, the petitioner has prayed for the following reliefs;

"6. ...

(a) To quash and set aside the Criminal Case no- 11133/2022 with the Ld Judicial Magistrate, Bharuch vide Annexure-"A".

(b) pending admission, final hearing and disposal of this petition, to stay further proceedings of the Criminal Case- 11133/2022 registered with Ld Judicial Magistrate, Bharuch filed against the petitioner vide Annexure-"A" to Page 1 of 10 Downloaded on : Mon Nov 06 20:36:30 IST 2023 NEUTRAL CITATION R/CR.MA/5734/2023 ORDER DATED: 02/11/2023 undefined this petitioner

(c) To pass any other and further orders as may be deemed fit and proper."

2. Succinctly stated the facts of the case are that the original complainant-Respondent No.2 herein filed the complaint being Criminal Case No. 11133 of 2022 before the learned Judicial Magistrate First Class, Bharuch, for the offence punishable under Section 138 of the Negotiable Instrument Act, 1881 (in brief, 'NI Act'), against the present petitioner, as the cheque bearing No. 001096, payable at Bank of Baroda for the amount of Rs.2,50,000/-, Dated: 20.06.2022, was returned unpaid for the reason 'Stop Payment'.

2.1 After issuing the statutory notice, the complaint under Section 138 of the NI Act was filed, which is produced as Annexure-A to this petition. From a perusal of the complaint it appears that the present petitioner obtained loan from Vidhi Finance of Rs.2,82,000/- and failed to repay the same. Therefore, Vidhi Finance instituted Regular Civil Suit No. 352 of 2020 before the concerned Civil Court for recovery of the aforesaid principal amount along with interest of Rs.2,65,387/-. According to Respondent No.2, the present petitioner, who was the defendant in the Suit, arrived at an out of Court compromise with him and gave the aforesaid cheque towards the same. Pursuant to the settlement arrived at with the petitioner, Respondent No.2 withdrew Regular Civil Suit No. 352 of 2020. However, when Respondent No.2 deposited the cheque bearing No. 001096, upon the instructions of the Page 2 of 10 Downloaded on : Mon Nov 06 20:36:30 IST 2023 NEUTRAL CITATION R/CR.MA/5734/2023 ORDER DATED: 02/11/2023 undefined present petitioner, the same was returned with the endorsement "Payment Stopped by Drawer".

2.2 Respondent No.2, therefore, filed Criminal Case No. 11133 of 2022, after issuing statutory notice to the petitioner, before the concerned Court. The learned JMFC verified the contents of the complaint and after satisfying himself that prima facie there is sufficient material to issue process, it has issued process to the present petitioner and therefore, the petitioner has filed the present petition.

3. Learned Advocate Mr. Bhatt appearing for the petitioner would submit that there is no legally enforceable debt against the present petitioner and that the cheque in question, which is a post dated cheque, was issued at much earlier point of time, i.e. when Respondent No.2 had filed a complaint under Section 138 of the NI Act for dishonour of the cheque bearing No. 001097, which was given towards the installment of the loan. It was submitted that this contention was specifically raised by the petitioner while replying to the notice issued by Respondent No.2, whereby, it was stated by the petitioner that the said cheque was issued in the year 2015 and the same was misused after about 5 to 6 years by Respondent No.2. It was therefore submitted that this is nothing but the gross abuse of the process of law and the proceedings of Section 138 of the NI Act are being used as the sword of Damocles, since Respondent No.2, who is engaged in the business of finance, had taken-up blank cheques earlier and has misused the same, later on.

NEUTRAL CITATION R/CR.MA/5734/2023 ORDER DATED: 02/11/2023 undefined 3.1 It was further submitted that from a perusal of the plaint of Regular Civil Suit No. 352 of 2022, it transpires that without paying necessary Court fees, Respondent No.2 had preferred the same and then on his own, he withdrew the said Suit by making a misstatement that cheque has been received towards the out of Court compromise, arrived at between the parties. It was in fact submitted that no such cheque was ever given towards compromise in Regular Civil Suit No. 352 of 2022, but the same was given at an earlier point of time.

3.2 By advancing the aforesaid submissions, learned Advocate would submit to issue necessary notice.

4. Heard. The submissions canvassed by the learned Advocate Mr. Bhatt, if are taken at its face value, at the most, the same can be considered as good defence of the present petitioner to be advanced during the course of trial of Criminal Case No. 11133 of 2022. It is to be noted that the said criminal case is filed under the provisions of Section 138 of the NI Act. The system of reverse onus, envisaged under Section 139 of the NI Act, read with Section 118 of the NI Act, includes presumption that there exists a legally enforceable debt or liability on the accused. Indeed such a presumption is rebuttable but not by mere words or arguments. It is always open to the concerned accused person to raise all the contentions available under the law to question the aspect of legally existing debt or liability.

NEUTRAL CITATION R/CR.MA/5734/2023 ORDER DATED: 02/11/2023 undefined 4.1 At this juncture, I may refer to the findings and observations made by the Hon'ble Apex Court in the case of 'Jain P. Jose Vs. Santosh & Another', 2022 LiveLaw (SC) 979, which reads as under;

"This decision, refers to an earlier judgment of this Court in "Rangappa vs. Sri Mohan" (2010) 11 SCC 441, which elucidating on the presumption under Section 139 of the N.I. Act, observes that this includes a presumption that there exists a legally enforceable debt or liability. However, the presumption under Section 139 of the N.I. Act is rebuttable and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested.

A recent decision of a three Judges Bench of this Court in "Kalamani Tex and Another vs. P. Balasubramanian" (2021) 5 SCC 283, examines the scope and ambit of the presumption under Sections 118 and 139 of the N.I. Act, to hold:

"14. Once the 2nd appellant had admitted his signatures on the cheque and the deed, the trial Court ought to have presumed that the cheque was issued as consideration for a legally enforceable debt. The trial Court fell in error when it called upon the respondent complainant to explain the circumstances under which the appellants were liable to pay. Such approach of the trial Court was Page 5 of 10 Downloaded on : Mon Nov 06 20:36:30 IST 2023 NEUTRAL CITATION R/CR.MA/5734/2023 ORDER DATED: 02/11/2023 undefined directly in the teeth of the established legal position as discussed above, and amounts to a patent error of law.

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17. Even if we take the arguments raised by theappellants at face value that only a blank cheque and signed blank stamp papers were given to the respondent, yet the statutory presumption cannot be obliterated. It is useful to cite "Bir Singh v. Mukesh Kumar", where this court held that: "Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt."

4.2 The position of law as stated herein above is reiterated in 'Rajesh Jain Vs. Ajay Singh', 2023 JX(SC)934, wherein at Paragraphs-44 to 45, it is observed thus;

"44. The accused may adduce direct evidence to prove that the instrument was not issued in discharge of a debt/ liability and, if he adduces acceptable evidence, the burden again shifts to the complainant. At the same time, the accused may also rely upon circumstantial evidence and, if the circumstances so relied upon are compelling Page 6 of 10 Downloaded on : Mon Nov 06 20:36:30 IST 2023 NEUTRAL CITATION R/CR.MA/5734/2023 ORDER DATED: 02/11/2023 undefined the burden may likewise shift to the complainant. It is open for him to also rely upon presumptions of fact, for instance those mentioned in Section 114 and other sections of the Evidence Act. The burden of proof may shift by presumptions of law or fact. In Kundanlal's case(supra) when the creditor had failed to produce his account books, this Court raised a presumption of fact under Section 114, that the evidence, if produced would have shown the non-existence of consideration. Though, in that case, this Court was dealing with the presumptive clause in Section 118 NI Act, since the nature of the presumptive clauses in Section 118 and 139 is the same, the analogy can be extended and applied in the context of Section 139 as well.

45. Therefore, in fine, it can be said that once the accused adduces evidence to the satisfaction of the Court that on a preponderance of probabilities there exists no debt/liability in the manner pleaded in the complaint or the demand notice or the affidavit-evidence, the burden shifts to the complainant and the presumption 'disappears' and does not haunt the accused any longer. The onus having now shifted to the complainant, he will be obliged to prove the existence of a debt/liability as a matter of fact and his failure to prove would result in dismissal of his complaint case. Thereafter, the presumption under Section 139 does not again come to the complainant's rescue. Once both parties have adduced evidence, the Court has to consider the same Page 7 of 10 Downloaded on : Mon Nov 06 20:36:30 IST 2023 NEUTRAL CITATION R/CR.MA/5734/2023 ORDER DATED: 02/11/2023 undefined and the burden of proof loses all its importance. [Basalingappa vs. Mudibasappa, AIR 2019 SC 1983; See also, Rangappa vs. Sri Mohan (2010) 11 SCC 441]"

4.3 The powers under Section 482 of the Code can be exercised in case if one finds that the FIR or the complaint is vicious or frivolous. In the case of 'State Of Haryana & Others Vs. Bhajanlal & Others', 1992 AIR 604, where, the Apex Court has set out detailed guidelines for invocation of such powers, which are to be exercised sparingly and in extraordinary circumstances. The relevant observations of the Apex Court read thus:

"8.1. In the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code of Criminal Procedure, the following categories of cases are given by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guide- ï7 3 myriad kinds of cases wherein such power should be exercised:

(a) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused;

NEUTRAL CITATION R/CR.MA/5734/2023 ORDER DATED: 02/11/2023 undefined

(b) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;

(c) where the uncontroverted allegations made in the FIR or 'complaint and the evidence collected in support of the same do not disclose 265 the commission of any offence and make out a case against the accused;

(d) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;

(e) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;

(f) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, Page 9 of 10 Downloaded on : Mon Nov 06 20:36:30 IST 2023 NEUTRAL CITATION R/CR.MA/5734/2023 ORDER DATED: 02/11/2023 undefined providing efficacious redress for the grievance of the aggrieved party;

(g) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

4.4 Nothing is found to be improper from the bare reading of the complaint. The contentions raised by the learned Advocate Mr. Bhatt, as observed herein above, can allowed to be raised at the time of cross-examination of the complainant- Respondent No.2 or while leading the evidence by the accused him/herself. In other words, the petitioner failed to make out a case and to display that the complaint is false or frivolous.

5. For the foregoing reasons, this petition fails and is Dismissed in liminie. Rule is discharged.

(J. C. DOSHI,J) UMESH/-