Gujarat High Court
Paulomi Road Builders - A Partnership ... vs State Of Gujarat on 10 July, 2025
NEUTRAL CITATION
R/SCR.A/2066/2017 ORDER DATED: 10/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 2066 of 2017
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PAULOMI ROAD BUILDERS - A PARTNERSHIP FIRM - THROUGH ITS
PARTNER
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR MANAN A SHAH(5412) for the Applicant(s) No. 1
MR CHETAN K PANDYA(1973) for the Respondent(s) No. 2
MR TIRTHRAJ PANDYA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 10/07/2025
ORAL ORDER
1. By way of this application under Article 226 of Constitution of India read with section 482 of the Code of Criminal Procedure, 1973, the petitioner have prayed to quash and set aside the proceedings of Criminal Case No.6674 of 2009 pending before learned Senior Civil Judge and JMFC, Bardoli under the provisions of Negotiable Instrument Act and all the consequential proceedings arising therefrom.
2. Facts of the case are as under :-
2.1. It is the case of the complainant in the complaint, that during the period before July 2007, purchase of diesel worth Rs.
14,50,000/- was made. That on repeated demands being made by the complainant, a cheque was issued bearing cheque no. 774816 dated 20.5.2008 drawn on The Catholic Syrian Bank Page 1 of 6 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Jul 15 2025 Downloaded on : Tue Jul 15 21:39:11 IST 2025 NEUTRAL CITATION R/SCR.A/2066/2017 ORDER DATED: 10/07/2025 undefined Limited, Surat by Paulomi Road builders Pvt. Ltd. Upon presentation of the cheque, the said cheque came to be dishonoured with endorsement "Payment Stopped by drawer" on 28.5.2008. The Bank had received the said information/memo on 1.6.2008. It is alleged that as the petitioner did not want to make the payment, the petitioner has stopped the payment. It is alleged that the complainant issued statutory notice u/s. 138 of N.1. Act on 7.6.2008, which was received on 11.6.2008 by Paulomi Road Builders, a partnership firm. Thereafter, as there was no reply to the notice, the complainant filed impugned complaint on 08.07.2008.
3. The petitioner who is accused in the trial during cross examination raised defence that cheque in question is drawn by Paulomi Road Builders Pvt. Ltd. However, drawer of the cheque is not joined as accused in the complaint and without joining drawer as accused, complaint under section 138 of N.I.Act against petitioner is not maintainable.
4. The petitioner midway of trial without adjudicating his defence, approached this Court seeking aforesaid relief.
5. Learned advocate Mr.Manan Shah for the petitioner seeking to quash proceedings of Criminal Case No.6674 of 2009 initiated by respondent no.2 under section 138 of Negotiable Instrument Act referring to judgment of Aneeta Hada v/s. M/s. Godfather Travels and Tours Pvt. Ltc. [2012 (5) SCC 661] as well as judgment of this Court in the case of Mahendra Gulabchand Khandelwal v/s. State of Gujarat [2023 (2) DCR 13] and Page 2 of 6 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Jul 15 2025 Downloaded on : Tue Jul 15 21:39:11 IST 2025 NEUTRAL CITATION R/SCR.A/2066/2017 ORDER DATED: 10/07/2025 undefined judgment in the case of Mitesh Gulabrai Sayani v/s. State of Gujarat [Criminal Misc. Application No.14590 of 2019] argued that cheque which is dishonored was issued by Paulomi Road Builders Pvt. Ltd. In other words, he would submit that Paulomi Road Builders Pvt. Ltd. is drawer of cheque. He would further submit that in the complaint Paulomi Road Builders Pvt. Ltd. is not joined as party. Complaint is essentially filed against against Paulomi Road Builders and accused - Gatubhai Patel. He would submit that without joining drawer of cheque i.e. Paulomi Road Builders Pvt. Ltd., no prosecution can be continued against the petitioner. Learned advocate for the petitioner further submitted that during cross examination of the complainant it comes on record that cheque has been drawn by Paulomi Road Builders Pvt. Ltd. and not by the petitioner and therefore, now continuing proceeding against the petitioner would be futile exercise.
5.1. In view of above, learned advocate for the petitioner submitted that complaint may be quashed by exercising power under section 482 of Cr.P.C.
6. Learned advocate Mr.Pandya for the respondent - complainant would submit that Criminal Case under section 138 of Negotiable Instrument Act was initiated in the year 2009. Prior to filing of Criminal Case, statutory notice was issued to Paulomi Road Builders Pvt. Ltd. and Gatubhai Patel, which was not replied. Process was issued on 24.12.2009. Process since was served to the petitioner, he did not contest. Plea of the petitioner was taken and at that time he did not reveal anything what he has stated in the case and matter proceed further. Complainant Page 3 of 6 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Jul 15 2025 Downloaded on : Tue Jul 15 21:39:11 IST 2025 NEUTRAL CITATION R/SCR.A/2066/2017 ORDER DATED: 10/07/2025 undefined entered into witness box and he has been cross examined by the learned advocate for the petitioner. Other evidence are placed on record and during process of recording evidence, application Exh.72 was moved to place on record copy of partnership firm. Learned Trial Court allowed the application below Exh.72 and after closing evidence, further statement of the petitioner is also recorded, where he has raised defence that he has not issued cheque; false complaint is filed against him and drawer of cheque is Paulomi Road Builders Pvt. Ltd. and if required he reserves his right to lead evidence. Learned advocate Mr.Pandya submitted that instead of producing evidence before learned Trial Court, the petitioner has approached this Court by filing present petition claiming relief of quashing and setting aside trial. It is also submitted that since evidence is already led before the learned Trial Court, this Court may not entertain the petition under section 482 of Cr.P.C. and let learned Trial Court to decide Criminal Case on evidence.
6.1. Learned APP for respondent State in private complaint, supported the judgment of learned Trial Court and submitted to dismiss the petition.
7. Learned advocate Mr.Shah though no specifically argued in reply submitted that order below Exh.72 is also challenged before this Court under Article 227 of the Constitution of India.
8. Having heard learned advocates for both the sides, and paying due consideration to rival submissions, it is noticeable that petitioner has participated in trial of Criminal Case filed Page 4 of 6 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Jul 15 2025 Downloaded on : Tue Jul 15 21:39:11 IST 2025 NEUTRAL CITATION R/SCR.A/2066/2017 ORDER DATED: 10/07/2025 undefined under section 138 of Negotiable Instrument Act. Statutory notice under section 138(b) of NI Act was issued to Paulomi Road Builders partnership firm and Gatubhai Patel. The notice is not replied. No reason is assigned why notice is not replied. Be that as it may. The petitioner did not resist issuance of process or raised contention that he is not drawer of cheque, when his plea was recorded before the learned Trial Court. The petitioner continued to participate in Criminal Case, only in cross examination petitioner has raised defence that cheque is not drawn by Paulomi Road Builders Pvt. Ltd. Other evidence of prosecution side is also recorded and subsequent thereto after closing evidence of complainant side, further statement of petitioner under section 313 of Cr.P.C. is recorded. He raised contention that he is not drawer of cheque and reserve his right to lead evidence, which can be seen from page no.36 to 39.
9. In view of above, since learned Trial Court is seized with evidence, contention raised by petitioner / complainant, this Court finds no reason to exercise power to pass any order in regard to contention raised by the petitioner. The issue is already under consideration of learned Trial Court and in that event, this Court does not find any reason to entertain the petition. It is settled principle that this Court under section 482 of Cr.P.C. cannot appreciate evidence recorded during trial more particularly when trial is pending for adjudication. Since trial is on its way, this Court cannot express any opinion on legality and veracity of evidence, it is best to left for learned Trial Court to appreciate evidence in backdrop of contention. Noticeably, order passed by learned Trial Court below Exh.72 is challenged under Page 5 of 6 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Jul 15 2025 Downloaded on : Tue Jul 15 21:39:11 IST 2025 NEUTRAL CITATION R/SCR.A/2066/2017 ORDER DATED: 10/07/2025 undefined Article 226 of the Constitution of India. To be noted that Judicial orders of trial court are not amenable to writ jurisdiction under Article 226 of the Constitution. Law is well settled by the Hon'ble Apex Court in the case of Radhey Shyam & Anr v/s Chhabi Nath [(2015) 5 SCC 423].
10. Three judgments relied by learned advocate Mr.Shah are completely on different facts and they have not application at this stage, more particularly when trial is at midway or at fag end.
11. For the aforesaid reasons, since petition being bereft of merits, is accordingly, dismissed. Notice is discharged. Interim relief granted earlier, if any, stands vacated.
12. After order is dictated, learned advocate Mr.Shah for the petitioner seeks relief to continue interim relief for four weeks. The request is declined, in peculiar facts of the case, as trial is at fag end.
(J. C. DOSHI,J) SATISH Page 6 of 6 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Jul 15 2025 Downloaded on : Tue Jul 15 21:39:11 IST 2025