Gujarat High Court
Krishna Earth Movers A Partnership Firm ... vs The State Of Gujarat on 5 August, 2025
NEUTRAL CITATION
R/SCR.A/7537/2018 ORDER DATED: 05/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 7537 of 2018
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KRISHNA EARTH MOVERS A PARTNERSHIP FIRM THORUGH ITS
PARTNER KARABHAI SAJANBHAI PAUN
Versus
THE STATE OF GUJARAT & ANR.
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Appearance:
MR ANKIT SHAH(6371) for the Applicant(s) No. 1
MR AM PAREKH(562) for the Respondent(s) No. 2
MR CHINTAN DAVE, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 05/08/2025
ORAL ORDER
1. By way of this petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code") as well as under Article 227 of the Constitution of India, the petitioner has prayed for quashing and setting aside the order dated 29.06.2018 passed in Criminal Revision Application No.34 of 2017 by learned Sessions Judge, Jamnagar as well as order dated 21.01.2017 passed below Exh.119 in Criminal Case No.9888 of 2007 passed by learned Additional Senior Civil Judge, Jamnagar.
2. Facts of the case are as under :-
2.1. The petitioner herein is in the business of giving heavy vehicles on rent. Respondent No.2 herein is in the business of construction of road and as such, it was in need of J.C.B. machine and therefore, approached the petitioner herein. The petitioner herein had lent its J.C.B. Machine on rent to Page 1 of 10 Uploaded by SATISH C. VEMULLA(HC00206) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:16:36 IST 2025 NEUTRAL CITATION R/SCR.A/7537/2018 ORDER DATED: 05/08/2025 undefined respondent No.2. Tthat respondent No.2, in order to pay rent of the J.C.B. machine taken on rent from the petitioner, issued a cheque bearing No.566302 dated 15.10.2007 for Rs.42,35,000/-
drawn on Bank of Baroda, Zabua (M.P) Branch with a promise that on presentation of the same the said cheque will be duly honoured by their bankers. However, the said cheque, on presentation to the Bank for clearance on 15.10.2007, returned dishonoured by the bankers of the petitioner, namely, ICICI Bank on 24.11.2007 with remarks "Fund Insufficient". That thereafter the petitioner issued legal notice under Section 138 of the Negotiable Instruments Act to the respondent company on 05.12.2007 by registered A.D. Post and on receipt of the same, respondent No.2 herein had, vide its reply dated 12.12.2007 issued through its advocate whereby respondent No.2 herein instead of making the payment of the amount of the cheque, gave an evasive reply and denied its liability.
2.2. Being aggrieved by and dissatisfied with the reply dated 12.12.2007 given by respondent No.2 herein, the petitioner herein preferred Criminal Case No.9888/2007 before the learned Chief Judicial Magistrate, Jamnagar. It is u/s 138 of the Negotiable Instruments Act. That the title clause of the said Criminal Case reads thus:
Jitendra G. Patel Project Limited Through its Director Ashokbhai Manvar, C/13, Usha Kiran, Yagnik Road, Rajkot.Page 2 of 10 Uploaded by SATISH C. VEMULLA(HC00206) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:16:36 IST 2025
NEUTRAL CITATION R/SCR.A/7537/2018 ORDER DATED: 05/08/2025 undefined 2.3. That thereafter, since the petitioner has made the Director of the party as the accused and not the company, in order to avoid technical error, the petitioner made an application vide Exh.119 in the said Criminal Case No.9888/2007, seeking permission of the Hon'ble Court to permit the petitioner to show the name of company also as an accused in the said Criminal Case No.9888/2007. However, the learned Judicial Magistrate and 2nd Additional Senior Civil Judge, Jamnagar, has been pleased to reject the said application Exh.119 vide its order dated 21.01.2017.
2.4. Being aggrieved by and dissatisfied with the said order dated 21.01.2017, petitioner has preferred Criminal Revision Application No.34/2017 before the learned Sessions Court, Jamnagar. However, learned Sessions Judge, Jamnagar rejected the said Criminal Revision Application No.34 of 2017 vide order dated 29.06.2018. Hence, present petition.
3. Learned advocate Mr.Ankit Shah for the petitioner relying on judgment of Hon'ble Apex Court in the case of Bansal Milk Chilling Centre v/s. Rana Milk Food Private Ltd. [2025 INSC 899] would submit that in complaint under section 138 of Negotiable Instrument Act, amendment is permissible at pre cognizable stage as factual scenario is not much changed, nor accused entered into defence at this stage. It is submitted that in the present case, by typographical mistake, the petitioner / complainant has joined Director of Patel Project Limited but did not join Patel Project Limited (company) and therefore, limited amendment was sought by filing application at Exh.119 in Page 3 of 10 Uploaded by SATISH C. VEMULLA(HC00206) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:16:36 IST 2025 NEUTRAL CITATION R/SCR.A/7537/2018 ORDER DATED: 05/08/2025 undefined Criminal Case No.9888 of 2007 and permit the petitioner complainant to join Company as accused.
3.1. Learned advocate Mr.Ankit Shah for the petitioner submitted that learned Trial Court committed serious mistake in not allowing amendment in complaint under section 138 of NI Act. The error committed by learned Trial Court continued as learned Sessions Court rejected Revision Application No.34 of 2017 by just confirming the reasons passed by learned Trial Court.
3.2. In aforesaid arguments, learned advocate Mr.Shah submitted to allow the petition.
4. Per contra, learned advocate Mr.A.M.Parekh for private respondent would submit that since inception complaint before the learned Trial Court is suffering from mischief of section 141 of NI Act. He would submit that Director of Company having vicarious liability cannot be joined as accused without joining Company. He would submit that the petitioner knowingly fully well legal position intend to join company being separate legal entity under the guise of amending complaint filed under section 138 of NI Act. It is further submitted that it is not amendment but it is attempt to join new accused in private complaint which is at the stage of trial.
4.1. In premises of aforesaid arguments, learned advocate Mr.Parekh submitted that learned Trial Court as well as learned Revisional Court has rightly rejected contention raised by the petitioner. Hence, he submits that petition being devoid of merits Page 4 of 10 Uploaded by SATISH C. VEMULLA(HC00206) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:16:36 IST 2025 NEUTRAL CITATION R/SCR.A/7537/2018 ORDER DATED: 05/08/2025 undefined be dismissed.
5. Learned APP while joining hand of learned advocate Mr.Parekh submitted that since dispute is between two private parties, the Court may pass necessary order.
6. Having heard learned advocate for the parties and having considered documents on record, what could be noticed that the petitioner has filed Criminal Case No.9888 of 2007 before the learned Court of CJM, Jamnagar under section 138 of NI Act claiming that cheque no.566306 in question issued by Patel Projects Limited and signed by its Director has been returned unpaid and despite issuance of notice under section 138 of NI Act, amount of cheque has not been paid. Following aforesaid procedure, criminal case under section 138 of NI Act was filed against Director of Jitendra G. Patel Projects Ltd.
7. During pendency of the criminal case, it came to the notice of the petitioner - complainant that Mr.Ashok Manver has issued cheque in capacity of Director of Jitendra G. Patel Projects Ltd.
having independent legal entity and hence, preferred application Exh.119 to join Jitendra G. Patel Projects Ltd. As accused separately. The application filed before learned Trial Court is essentially under section 319 of Cr.P.C. and object of the application is to come out from mischief of Section 141 of NI Act. Learned Trial Court after referring to judgment on the subject matter, more particularly in case of Aanita Hada v/s. Godfather Travels and Tours Pvt. Ltd. [2012 (5) SCC 661] and judgment of this Court in the case of Oanali Ismailji Sadikot v/s. State of Gujarat [GLR 2016 (3) 1991] was pleased to reject the Page 5 of 10 Uploaded by SATISH C. VEMULLA(HC00206) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:16:36 IST 2025 NEUTRAL CITATION R/SCR.A/7537/2018 ORDER DATED: 05/08/2025 undefined application. Learned Trial Court while dismissing the application referred to judgment of Oanali (supra) to held that under guise of section 319 of Cr.P.C., the petitioner who has not joined company as accused cannot implead the same. Order passed below Exh.119 has been carried to challenge before the learned Sessions Court. Revision having been heard, learned Sessions Judge, Jamnagar dismissed the Revision Application by referring to the observation made by this Court in Oanali (supra) that "what cannot be done directly by the Court should not be done indirectly."
8. Thus, what could be notice that it is not simple cause of permitting amendment to correct typographical error. Learned advocate for the petitioner / complainant tried to put the case as innocuous case of seeking just amendment. However, under guise of amendment in complaint, petitioner intend to cure fatal defect. Complaint under section 138 of NI Act is not maintainable without joining company as accused, if drawer of cheque is company. Further it is case where the petitioner intend to join new accused under section 319 of Cr.P.C. The petitioner / complainant having fully known well that complaint would fail in absence of company being accused, as cheque has been issued by Director of the Company which could be held vicarious liable, if company is joined as accused. The attempt on the part of the petitioner appears to mislead the Court. The approach deserves to be deprecated and accordingly it is deprecated. Cost is also deserved to be quantified which is done in the later part of the judgment.
Page 6 of 10 Uploaded by SATISH C. VEMULLA(HC00206) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:16:36 IST 2025NEUTRAL CITATION R/SCR.A/7537/2018 ORDER DATED: 05/08/2025 undefined
9. Section 141 of the Negotiable Instrument Act reads as under :-
141. Offences by companies. --
(1)If the person committing an offence under section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:
Provided that nothing contained in this sub-section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence:
Provided further that where a person is nominated as a Director of a company by virtue of his holding any office or employment in the Central Government or State Government or a financial corporation owned or controlled by the Central Government or the State Government, as the case may be, he shall not be liable for prosecution under this Chapter. (2)Notwithstanding anything contained in sub-section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Explanation.--For the purposes of this section,--
(a)"company" means any body corporate and includes a firm or other association of individuals; and
(b)"director", in relation to a firm, means a partner in the Page 7 of 10 Uploaded by SATISH C. VEMULLA(HC00206) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:16:36 IST 2025 NEUTRAL CITATION R/SCR.A/7537/2018 ORDER DATED: 05/08/2025 undefined firm.
10. In order to maintain complaint against company under section 138 of NI Act as well as Director who is day to day incharge of affairs, both are required to be joined as accused. The phrase "as well as company" stated in section 141(1) of NI Act makes it mandatory to join company, if company is drawer of cheque. Learned advocate Mr.Shah for the petitioner could not point out whether statutory notice was given to the Company or not. Action of giving notice under section 138 of NI Act to the accused is that it is pre condition to launch proceedings against the accused. It appears that no statutory notice is issued under section 138 of NI Act to Jitendra G. Patel Projects Ltd. Thus no prosecution can be launched against company or no criminal case can be filed against Jitendra G.Patel Projects Ltd.
11. In the aforesaid circumstances, this Court is of the opinion that the argument of learned advocate Mr.Shah for the petitioner seeking amendment at pre-cognizable stage appears to be complete misnomer and perhaps with intention to mislead the Court. Thus petition is devoid of merits and deserves to be dismissed. Even otherwise, jurisdiction of this Court under Article 227 of the Constitution of India in the petition filed by the petitioner is very limited.
12. I may also refer to the judgment of Hon'ble Apex Court in case of Garment Crafts Vs. Prakash Chand Goel reported in (2022) 4 SCC 181, wherein, the Hon'ble Apex Court has discussed the nature of scope of the supervisory jurisdiction under Article 227 of the Constitution of India. Relevant Page 8 of 10 Uploaded by SATISH C. VEMULLA(HC00206) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:16:36 IST 2025 NEUTRAL CITATION R/SCR.A/7537/2018 ORDER DATED: 05/08/2025 undefined discussion in para 15 and 16 reads thus:-
"15. Having heard the counsel for the parties, we are clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal [Celina Coelho Pereira (Ms) and Others v. Ulhas Mahabaleshwar Kholkar and Others, (2010) 1 SCC 217]. The jurisdiction exercised is in the nature of correctional1 jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice.
16. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd., (2001) 8 SCC 97 has observed:-
"6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited Page 9 of 10 Uploaded by SATISH C. VEMULLA(HC00206) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:16:36 IST 2025 NEUTRAL CITATION R/SCR.A/7537/2018 ORDER DATED: 05/08/2025 undefined prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to."
13. In premise of aforesaid reasons, I find that no case is made by the petitioner, rather an attempt is made to mislead the Court by saying that it is just simple amendment sought by the petitioner and even purposely incorrect statement is made in the petition. The petition stands dismissed with cost quantified at Rs.5000/- to be paid with District Legal Services Authority, Jamnagar within ten days from today and receipt thereof shall be produced on record. If order is not complied, Registry is directed to re-list the matter before this Court.
(J. C. DOSHI,J) SATISH Page 10 of 10 Uploaded by SATISH C. VEMULLA(HC00206) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:16:36 IST 2025