Gujarat High Court
Kishorbhai Jentilal Patel vs State Of Gujarat on 26 September, 2025
NEUTRAL CITATION
R/SCR.A/10988/2021 ORDER DATED: 26/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 10988 of 2021
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KISHORBHAI JENTILAL PATEL & ANR.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR P S DATTA(11324) for the Applicant(s) No. 1,2
MR HARDIK MEHTA, ADDL. PUBLIC PROSECUTOR for the
Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 26/09/2025
ORAL ORDER
1. By way of this petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code"), the petitionersprayed for quashing and setting aside proceedings of Criminal Case No.200 of 2020 pending before the learned CJM, Nakhatrana as well as order dated 23.10.2020 and all other consequential proceedings arising therefrom qua the petitioners.
2. One Mr.Ketan Dhanani filed complaint u/s 138 of the NI Act, which was culminated into Criminal Case No.200 of 2020 in the Court of learned CJM, Nakhatrana Kachchh against present petitioners as well as original accused No.1 Bharat Patel mainly on the allegation that original accused No.1 has issued cheque of Rs.10 lakh bearing No.500092 dated 3.9.2020 drawn of the bank account No.56230100001206 of Page 1 of 5 Uploaded by SHEKHAR P. BARVE(HC00200) on Fri Sep 26 2025 Downloaded on : Sat Sep 27 02:59:47 IST 2025 NEUTRAL CITATION R/SCR.A/10988/2021 ORDER DATED: 26/09/2025 undefined Bank of Baroda, jointly hold by all the three accused, in favour of the respondent No.2, which was dishonoured when presented.
3. The private complaint is filed making allegation that original accused No.1 Bharat Patel obtained financial assistance from the private respondent and did not pay the same to the complainant and on demand, has given aforestated cheque from the joint account of all the accused and when presented, the same is dishonoured and therefore, proceedings u/s 138 of the NI Act is initiated and in that, the learned CJM has issued process to the petitioners along with original accused No.1 Bharat Patel.
4. Being aggrieved by the aforesaid issuance of process, the petitioners are before this Court by way of filing present petition u/s 482 of the Code of Criminal Procedure, 1973.
5. The argument of Learned advocate for the petitioners is based upon the judgment of the Hon'ble Apex Court in case of Alka Khandu Avhad Versus Amar Syamprasad Mishra, 2021 (4) SCC 675. He would further submit that the petitioners are not the drawer of the cheque in question and they are just joint holder of the account and all the allegations are levelled against original accused No.1 Bharatbhai for the transaction inter se between him and the complainant and in that circumstances, the petitioners, who are merely joint holder of the account, cannot be prosecuted under the provisions of section 138 of the NI Act. These submissions are made to quash issuance of process against the petitioners.
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6. Though served, none appears for the private respondent.
7. Learned APP requests to pass necessary orders since the dispute is private between the parties.
8. At the outset, let refer relevant findings of the Hon'ble Apex Court in case of Alka Khandu Avhad (supra). In para, 7, 8 and 8.1 of the Hon'ble Apex Court addressed identical issue, which reads as under:-
"7. On a fair reading of Section 138 of the NI Act, before a person can be prosecuted, the following conditions are required to be satisfied:
i) that the cheque is drawn by a person and on an account maintained by him with a banker;
ii) for the payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability; and
iii) the said cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account. Therefore, a person who is the signatory to the cheque and the cheque is drawn by that person on an account maintained by him and the cheque has been issued for the discharge, in whole or in part, of any debt or other liability and the said cheque has been returned by the bank unpaid, such person can be said to have committed an offence. Section 138 of the NI Act does not speak about the joint liability. Even in case of a joint liability, in case of individual persons, a person other than a person who has drawn the cheque on an Page 3 of 5 Uploaded by SHEKHAR P. BARVE(HC00200) on Fri Sep 26 2025 Downloaded on : Sat Sep 27 02:59:47 IST 2025 NEUTRAL CITATION R/SCR.A/10988/2021 ORDER DATED: 26/09/2025 undefined account maintained by him, cannot be prosecuted for the offence under Section 138 of the NI Act. A person might have been jointly liable to pay the debt, but if such a person who might have been liable to pay the debt jointly, cannot be prosecuted unless the bank account is jointly maintained and that he was a signatory to the cheque.
8. Now, so far as the case on behalf of the original complainant that the appellant herein - original accused No. 2 can be convicted with the aid of Section 141 of the NI Act is concerned, the aforesaid has no substance.
8.1 Section 141 of the NI Act is relating to the offence by companies and it cannot be made applicable to the individuals. Learned counsel appearing on behalf of the original complainant has submitted that "Company" means any body corporate and includes, a firm or other association of individuals and therefore in case of a joint liability of two or more persons it will fall within "other association of individuals" and therefore with the aid of Section 141 of the NI Act, the appellant who is jointly liable to pay the debt, can be prosecuted. The aforesaid cannot be accepted. Two private individuals cannot be said to be "other association of individuals". Therefore, there is no question of invoking Section 141 of the NI Act against the appellant, as the liability is the individual liability (may be a joint liabilities), but cannot be said to be the offence committed by a company or by it corporate or firm or other associations of individuals. The appellant herein is neither a Director nor a partner in any firm who has issued the cheque. Therefore, even the appellant cannot be convicted with the aid of Section 141 of the NI Act. Therefore, the High Court has committed a grave error in not quashing the complaint against the appellant for the offence punishable under Section 138 r/w Page 4 of 5 Uploaded by SHEKHAR P. BARVE(HC00200) on Fri Sep 26 2025 Downloaded on : Sat Sep 27 02:59:47 IST 2025 NEUTRAL CITATION R/SCR.A/10988/2021 ORDER DATED: 26/09/2025 undefined Section 141 of the NI Act. The criminal complaint filed against the appellant for the offence punishable under Section 138 r/w Section 141 of the NI Act, therefore, can be said to be abuse of process of law and therefore the same is required to be quashed and set aside."
9. Applying the aforesaid ratio to the facts of present case, if we refer the cheque in question at Annexure D, which is dishonoured and for which, criminal complaint has been lodged, is signed by original accused No.1 Bharat Patel. The cheque is drawn from the account jointly hold by the petitioners along with original accused No.1 Bharat Patel. The FIR does not state any role of the present petitioners in transaction with the complainant and original accused No.1 Bharat Patel. In the aforesaid circumstances, ratio laid down in case of Alka Khandu Avhad (supra) squarely applies to the facts of the present case.
10. In the result, the petition is allowed and proceedings of Criminal Case No.200 of 2020 pending before the learned CJM, Nakhatrana as well as order dated 23.10.2020 and all other consequential proceedings arising therefrom qua the petitioners are hereby quashed and set aside. Rule made absolute to the aforesaid extent. Direct service is permitted.
(J. C. DOSHI,J) SHEKHAR P. BARVE Page 5 of 5 Uploaded by SHEKHAR P. BARVE(HC00200) on Fri Sep 26 2025 Downloaded on : Sat Sep 27 02:59:47 IST 2025