Gujarat High Court
Imrozkhan Ibrahimkhan Pathan vs State Of Gujarat on 23 March, 2021
Bench: Vaibhavi D. Nanavati
R/SCR.A/9865/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 9865 of 2018
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IMROZKHAN IBRAHIMKHAN PATHAN
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR SK PATEL(654) for the Applicant(s) No. 1
HCLS COMMITTEE(4998) for the Respondent(s) No. 2
MS. SHIVANGI M RANA(7053) for the Respondent(s) No. 2
MS MOXA THAKKER, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 23/03/2021
ORAL ORDER
Heard Mr. S. K. Patel, learned advocate for
the applicant. He has submitted that the case of
the respondent Bo.2 complainant is that the
petitioner herein has committed an offence under
section 138 of Negotiable Instruments Act in
respect of cheque dated 10.04.2018 for Rs.2 lacks
drawn on his Dena Bank, Gunja Branch bearing
Cheque No. 245764 in favour of the complainant
which has returned dishonored with an endorsement
"fund insufficient". It is further submitted that
the Saving Bank Account bearing No.041810002788
does not belong to the applicant. It is stated
that passbook containing saving bank account of
the disputed cheque is in the name of Ibrahimbhai
R/SCR.A/9865/2018 ORDER
Ayubkhan Pathan which is produced at AnnexureC,
which shows that the cheque in question has not
been drawn by the applicant and the applicant is
not the drawer of the cheque or the same has not
been issued from the account maintained by him.
Learned advocate for the applicant has relied
on the decision in the case of Alka Khandu Avhad
vs. Amar Syamprasad Mishra & Anr., reported in
2021 Law Suit (SC) 175, paragraphs 7 and 8 are
extracted hereinbelow :
"[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
R/SCR.A/9865/2018 ORDER
liability, in case of individual persons, a
person other than a person who has drawn the
cheque on an 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/SCR.A/9865/2018 ORDER
r/w 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.
8. In view of the above and for the reasons
stated above, the present appeal succeeds. The
impugned judgment and order dated 21.08.2019
passed by the High Court in Criminal Writ
Petition No. 2595 of 2019 refusing to quash
the criminal complaint against the appellant
for the offence punishable under Section 138
read with Section 141 of the NI Act is hereby
quashed and set aside. The complaint case
pending in the Court of the learned
Metropolitan Magistrate filed by respondent
No. 1 original complainant being C.C. No.
2802/SS/2016 is hereby quashed and set aside.
The appeal is allowed accordingly."
Let the matter be listed on 30.3.2021.
(VAIBHAVI D. NANAVATI,J)
K.K. SAIYED
