Sandeep Steel Corporation By And ... vs State Of Gujarat

Gujarat High Court

Sandeep Steel Corporation By And ... vs State Of Gujarat on 17 September, 2025

                                                                                                                NEUTRAL CITATION




                           R/CR.RA/134/2010                                     JUDGMENT DATED: 17/09/2025

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                                   IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                  R/CRIMINAL REVISION APPLICATION NO. 134 of 2010

                      FOR APPROVAL AND SIGNATURE:

                      HONOURABLE MR. JUSTICE R. T. VACHHANI
                      ==========================================================
                                   Approved for Reporting                      Yes           No

                      ==========================================================
                            SANDEEP STEEL CORPORATION BY AND THROUGH PARTNER
                                                   Versus
                                          STATE OF GUJARAT & ANR.
                      ==========================================================
                      Appearance:
                      MS TEJAL A VASHI(2704) for the Applicant(s) No. 1
                      MR ABHAYKUMAR P SHAH(3093) for the Respondent(s) No. 2
                      PUBLIC PROSECUTOR for the Respondent(s) No. 1
                      ==========================================================
                         CORAM:HONOURABLE MR. JUSTICE R. T. VACHHANI

                                                          Date : 17/09/2025
                                                          ORAL JUDGMENT

1. The present Criminal Revision Application No.134 of 2010 is filed by the applicant - original complainant, Sandeep Steel Corporation, a partnership firm through its administrative partner Shri Patel Babubhai Hiralal, under Section 397 of the Code of Criminal Procedure, 1973, challenging the impugned order dated 21.01.2010 passed by the 2nd Judicial Magistrate First Class, Mehsana, below Exhibit 99 in Criminal Case No.7266/2003, whereby the application preferred by the applicant praying to frame charges against the respondent No.2 - original accused for the offences punishable under Sections 420, 466, 467, 468, 471 and 472 of the Indian Penal Code, 1860 came to be rejected.

NEUTRAL CITATION R/CR.RA/134/2010 JUDGMENT DATED: 17/09/2025 undefined

2. The brief facts of the case are as under:

2.1. The applicant and the respondent No.2 were having business relations with each other since quite some time and in the year 2003, the total outstanding amount which stood in the name of the respondent No.2 was to the tune of Rs.24,01,250/-

including interest.

2.2. In connection with the said outstanding amount, the respondent No.2 issued a cheque in favour of the applicant being Cheque No.233668 dated 09.10.2003 drawn on the Banaskantha District Central Cooperative Bank Limited for an amount of Rs.24,01,250/-, which was deposited by the applicant on 10.10.2003 with its bankers, viz. The Mehsana Nagrik Sahakari Bank Limited, Mehsana, but the said cheque came to be dishonoured on 11.10.2003 for the reasons "funds insufficient and drawer's signature differs".

2.3. Thereafter, the applicant addressed a statutory notice under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the "NI Act") to the respondent No.2 on 10.11.2003, and since no reply was given nor the payment was made, the applicant filed a complaint under Section 138 of the NI Act on 03.12.2003 before the Judicial Magistrate First Class, Mehsana, being Criminal Case No.7266/2003.

NEUTRAL CITATION R/CR.RA/134/2010 JUDGMENT DATED: 17/09/2025 undefined 2.4. Thereafter, summons was issued to the respondent No.2, who appeared before the trial Court and preferred an application below Exhibit-8 stating that the cheque was not issued from the account maintained by him, and in this context, on 13.04.2009, the applicant preferred an application below Exhibit 99 praying to frame charges against the respondent No.2 for the offences punishable under Sections 420, 466, 467, 468, 471 and 472 of the Indian Penal Code, 1860.

2.5. During the course of arguments, it was pointed out that the original account holder, Rohitkumar Hargovanbhai Patel, from whose account the cheque was issued, had filed a separate complaint at the Court of Deesa, and the Magistrate, without appreciating that the applicant had a separate cause of action, rejected the application below Exhibit 99 by the impugned order dated 21.01.2010.

3. Ms. Tejal A. Vashi, learned advocate for the applicant submits that the impugned order is bad and illegal as it is against the principles of criminal jurisprudence, against the weight of evidence on record, and without appreciating the separate cause of action of the applicant; that the Magistrate failed to appreciate that the applicant would have an independent cause of action compared to the complainant at Deesa; that the respondent No.2 knowingly issued a cheque from an account not maintained by him with intent to cheat; that prima facie case is made out for framing charges as prayed in Exhibit 99, especially considering the Page 3 of 7 Uploaded by MR.MITESH VIJAYBHAI PANCHAL(HCD0065) on Tue Sep 23 2025 Downloaded on : Tue Sep 23 22:27:41 IST 2025 NEUTRAL CITATION R/CR.RA/134/2010 JUDGMENT DATED: 17/09/2025 undefined defence in Exhibit 8 and documentary evidence from sales tax, bank, and income tax departments; and that the complaint at Deesa by Rohitkumar Hargovanbhai Patel is on a different cause of action though from the same transaction. In support of her submissions, learned advocate for the applicant has placed reliance in the case of Dipendra G. Choksi Vs. Dipak Chimanlal Patel, 1997 (2) GLR 1191 (Guj); Shankarrao Vs. Pandurang, III (2007) BC 65; and Anil Kumar Singh Vs. Smt. Kanak Prabha Dutta, 2003 Cri LJ 4078. More particularly in case the summons trial, which can be converted into warrant trial process. It is further submitted that even otherwise, it has become a duty on the part of the Magistrate to see that the prima facie offence is made out so as to issue process also for the offence under Section 420 of the Indian Penal Code, 1860.

4. Per contra, Mr. Abhaykumar P. Shah, learned advocate for the respondent No.2 has submitted that two separate complaints cannot be maintained for the same transaction as it violates Article 20 of the Constitution of India, 1950; that the complaint at Deesa by Rohitkumar Hargovanbhai Patel under Sections 406, 420, 463, 467, 468, 469, 471 of the Indian Penal Code, 1860 was filed on 26.05.2004 and process was issued on 08.06.2004 for Sections 406 and 468; that the present applicant was aware of the Deesa proceedings; that the application Exhibit 99 is filed at belated stage and an afterthought to harass the respondent No.2; and that the trial Court rightly rejected it as the Deesa Court had already considered similar allegations and issued process only for certain Page 4 of 7 Uploaded by MR.MITESH VIJAYBHAI PANCHAL(HCD0065) on Tue Sep 23 2025 Downloaded on : Tue Sep 23 22:27:41 IST 2025 NEUTRAL CITATION R/CR.RA/134/2010 JUDGMENT DATED: 17/09/2025 undefined sections. In support of his submissions, learned advocate for the respondent No.2 has placed reliance on the order dated 19.06.2012 passed by this Court in Criminal Revision Application No.337 of 2010. In view of the aforesaid order, it is observed that the trial Court, having taken cognizance under the NI Act, could not alter the charge to include offences under the Indian Penal Code, 1860, as it was exercising powers under a special statute. It is further submitted that since the application in question has been submitted at belated stage, pending the proceedings of the case and the subsequent filing of the complaint by said Rohitkumar Hargovanbhai Patel, before the Court of Judicial Magistrate First Class, at Deesa, as such no such averments or statements have even been made even at the time of filing of the complaint or at the time of recording the verification. Thus, the same is nothing but an afterthought and with a purpose to cause harassment to the respondent No.2, despite this complainant having been duly cited as a witness thereunder. It is not in dispute that the complainant has filed proceedings under the provisions of Section 138 of the NI Act, wherein, plea has been recorded and thereafter, witnesses have also been examined and during the pendency of the said proceedings, the questioned applications below Ex.99 came to be filed and after hearing the parties concerned, the learned Magistrate was pleased to reject the same on the grounds attributed in the proceedings.

5. Heard learned advocates for the respective parties.

NEUTRAL CITATION R/CR.RA/134/2010 JUDGMENT DATED: 17/09/2025 undefined

6. It is not in dispute that the proceedings under the provisions of Section 138 of the NI Act undisputedly seems to have been initiated on account of the cheque No.233668 dated 09.10.2003 having been dishonoured for the reasons of insufficient funds and drawer's signature differs. One Rohitkumar Hargovanbhai Patel has also initiated a complaint against the respondent No.2. It is also not in dispute that considering the statements and allegations made in the said complaint, more particularly, wherein, the present complainant has also been cited as a witness and, therefore, the present complainant was fully aware and acquainted with the facts of the prosecution moved by said Rohitkumar Hargovanbhai Patel. It is pertinent to note that, in absence of any such consent, the applicant cannot be cited as a witness. Thus, the present complainant has already participated in the cross prosecution initiated by the respondent No.2 in his capacity as a witness and, therefore, during the pendency of the proceedings initiated by the complainant under the provisions of Section 138 of the NI Act, particularly after the Court has already taken cognizance and charges having been framed, the request tendered to alter averments aid a charge has rightly been rejected and does not warrant interference by this Court.

7. Apart from the aforesaid legal aspects as agitated by the respective parties, the order passed by this Court in Criminal Revision Application No. 337 of 2010, has met with the issue with the case on hands and for the sake of brevity is required to be Page 6 of 7 Uploaded by MR.MITESH VIJAYBHAI PANCHAL(HCD0065) on Tue Sep 23 2025 Downloaded on : Tue Sep 23 22:27:41 IST 2025 NEUTRAL CITATION R/CR.RA/134/2010 JUDGMENT DATED: 17/09/2025 undefined reproduced:

"5. It appears from application Exh-73 annexed with the compilation that the petitioner filed complaint under section 138 of the NI Act and the trial Court took cognizance of the offence under section 142 of the NI Act and issued summons to the accused. Pursuant to the summons issued by the Court, the accused appeared in the Court and the trial proceeded by recording evidence. On completion of recording of evidence, further statement of the accused was also recorded. Thereafter, the petitioner gave application Exh-73 under section 216 of the Code to alter charge to section 420.

6. Under section 216 of the Code, any Court may alter or add to any charge any time before judgment is pronounced. It is not in dispute that the Court took cognizance of the offence under section 142 of the NI Act. The alteration of charge is prayed on the ground that during the course of recording of evidence, offence under section 420 of the IPC is made out. Under section 216 of the Code, the Court has power to add to or alter the charge before pronouncement of the judgment. In view of the fact that the trial Court took cognizance of the offence under a special statute governing commercial transaction and the Court was exercising power under special statute, the trial Court could not have altered the charge for the offence alleged to have been committed under the IPC. Therefore, the trial Court was justified in rejecting the application. Learned advocate Mr. Dagli failed to point out that the trial Court committed jurisdictional error. Therefore, the revision application requires to be dismissed."

8. In the result, the revision application fails and stands dismissed. Rule discharged. Interim relief, if any, stands vacated.

                                                                                            Sd/-      .
                                                                                    (R. T. VACHHANI, J)
                      MVP/50




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