Gujarat High Court
Zafar Yunus Sareshwala vs State Of Gujarat on 11 April, 2023
Bench: Ilesh J. Vora
R/SCR.A/8538/2022 JUDGMENT DATED: 11/04/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 8538 of 2022
With
CRIMINAL MISC. APPLICATION (FOR STAY) NO. 1 of 2022
In
R/SPECIAL CRIMINAL APPLICATION NO. 8538 of 2022
With
R/SPECIAL CRIMINAL APPLICATION NO. 8540 of 2022
With
CRIMINAL MISC. APPLICATION (FOR STAY) NO. 1 of 2022
In
R/SPECIAL CRIMINAL APPLICATION NO. 8540 of 2022
With
R/SPECIAL CRIMINAL APPLICATION NO. 8549 of 2022
With
CRIMINAL MISC. APPLICATION (FOR STAY) NO. 1 of 2022
In
R/SPECIAL CRIMINAL APPLICATION NO. 8549 of 2022
With
R/SPECIAL CRIMINAL APPLICATION NO. 8541 of 2022
With
CRIMINAL MISC. APPLICATION (FOR STAY) NO. 1 of 2022
In
R/SPECIAL CRIMINAL APPLICATION NO. 8541 of 2022
With
R/CRIMINAL MISC. APPLICATION NO. 386 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA Sd/-
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
Page 1 of 21
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R/SCR.A/8538/2022 JUDGMENT DATED: 11/04/2023
================================================================
ZAFAR YUNUS SARESHWALA
Versus
STATE OF GUJARAT
================================================================
Appearance:
MR RR MARSHALL, SR. ADVOCATE WITH MR ATIT D THAKORE(5290) for
the Applicant
MR YOGESH LAKHANI, SR. ADVOCATE WITH MR. ABHISST K
THAKER(7010) for the Respondent No. 2
MR J. K. SHAH APP for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 11/04/2023
COMMON ORAL JUDGMENT
1. Rule. By consent of all the parties, rule is fixed forthwith.
2. Since the present petitions arise out of same set of facts
and contentions and issue before this Court in all petition
is also common, the same are being decided by this
common judgment and order.
3. This Court has heard Mr. R.R. Marshall, learned Senior
Counsel assisted by Mr. Atit Thakore, learned counsel
appearing on behalf of the applicant - Zafar Sareshwala,
Mr. Yogesh Lakhani, learned Senior Counsel assisted by
Mr. Sanjeev Thaker & Abhisst Thaker, learned counsels
appearing for and on behalf of respondent No. 2 - original
complainant and Mr. J.K. Shah, learned APP for the
respondent No. 1 State.
4. Mr. Mukesh Sheth and his family members namely Ridham
Sheth, Neepa Shah, Pooja Ridham and Deena Sheth,
invested Rs.20 crores in the company namely Parsholi
R/SCR.A/8538/2022 JUDGMENT DATED: 11/04/2023
Motor Works Pvt. Ltd., a Company incorporated under the
Companies Act, 1956. The Directors of the Company and
applicant herein being in-charge of the management of
the company, approached the Mukesh Sheth and others,
as company needs fresh infusion of share capital for
augmenting the working capital to sustain the operations.
Parties, including the company entered into share holders
agreement and share subscription agreement dated
14.04.2016. The payment worth Rs.20 crores made to the
company subject to terms and conditions of the
agreement. It is alleged that, the company Parsholi Motors
and the persons in-charge of the company, were failed to
disbursed and/or allot the shares as per the agreement
and accordingly, as per the clauses of the agreements, the
investors are entitled to refund the amount. The
complainant and others have exercised exit option and
demanded the invested amount. The authorized signatory
of the company vide letter dated 06.03.2017,
acknowledged the due amount and assured that the
company will refund the entire share application money by
15.04.2017. The company vide its communication dated
19.05.2017, issued following post dated cheques towards
the refund of the share application money:
Name Amount Cheque No. Bank
Ridham Mukeshbhai Sheth 5,32,28,415=00 005619 ICICI Bank
Mukeshbhai Rasiklal Sheth 5,52,18,415=00 005620 ICICI Bank
Nipaben Shah 2,98,33,240=00 005621 ICICI Bank
Pooja Ridhambhai Sheth 3,03,74,930=00 005623 ICICI Bank
Deena Mukeshbhai Sheth 3,03,45,000=00 005622 ICICI Bank
R/SCR.A/8538/2022 JUDGMENT DATED: 11/04/2023
5. The aforesaid cheques issued in favour of the persons
named above, were returned "únpaid''. The statutory
notice as contemplated under the N.I. Act served upon
company as well as its Directors and persons in-charge of
the day to day affairs and management of the Company
and same were replied by the company without tendering
notice amount.
6. In such circumstances, five private complaints under the
provision of the Negotiable Instruments Act, 1981 have
been filed before the jurisdictional court at Kalol, Dist.:
Gandhinagar. The particulars of the complaint are as
under :
Criminal Case Complainant Name of Accused
No.
4299 of 2019 Neepa Shah 1. Parsoli Motors Works Pvt.
Ltd.,
2. Tahala Yunus Sareshwala
3. Umar Uvesh Sareshwala
4. Habib Zafar Sareshwala
5. Uvesh Yunush Sareshwala
6. Zafar Yunush Sareshwala.
4301 of 2019 Deena Sheth As above.
4300 of 2019 Pooja Ridham As above
4302 of 2019 Ridham As above
Mukesh
4298 of 2019 Mukesh Shah As above
7. In the aforesaid facts, the applicant-original accused No. 6
- Zafar Sareshwala, seeks to invoke inherent powers of
this Court under Article 226 of the Constitution of India,
read with Section 482 of the Code of Criminal Procedure,
R/SCR.A/8538/2022 JUDGMENT DATED: 11/04/2023
for quashing of the aforementioned private complaints.
8. For the sake of brevity and convenience, the factual
aspect mentioned in Criminal Misc. Application No. 8538 of
2022 is being considered for determination of the
controversy involved in these quashing petitions.
9. Facts and circumstances of the Criminal Case No. 4299 of
2019 filed by the respondent no. 2 - Nipa Shah are that,
she along with her family members invested the tune of
Rs.20 crores as a Share Application Money in Parsoli Motor
Works Pvt. Ltd., out of which, contribution of the
complainant was Rs.2,98,33,240/-. The Company has been
arraigned as accused no. 1. The accused Nos. 2, 3 and 4
are the Directors of the accused no. 1 Company, whereas,
the accused Nos. 5 and 6 are actively involved and in-
charge of daily management of the company and all are
involved in day to day transactions / affairs of the
company. It is further averred that, accused no. 2, 5 and 6,
the present applicant herein had executed two
agreements called as 'Share Holders Agreement' and
'Share Subscription Agreement'. Both the agreements
were being executed by and between the promoters and
the present complainant and her family. The present
applicant - accused no. 6 had entered upon the said
agreement with the complainant and her family members
in the capacity as a power of attorney holder of Mohd.
Habib Sareshwala, J.W. Khadija and minor Ahmed
Sareshwala. The accused no. 5 - Uvesh Sareshwala signed
the agreement in the capacity as power of attorney holder
R/SCR.A/8538/2022 JUDGMENT DATED: 11/04/2023
of Umar Sareshwala, J.W. Fateme and minor Ashma
Sareshwala. The agreement was also signed by accused
no. 2 in the capacity of Director of accused no. 1 Company
and power of attorney of Qudisya Sareshwala and others.
In such circumstances, it is averred that, the accused nos.
2 to 6 are actively involved in the day to day affairs of the
accused no. 1 Company.
It is further averred in the complaint that, vide letter
dated 01.03.2017, the complainant, along with her family
members had exercised, exist option and demanded the
refund of share application money. It is averred that, on
various instances, the complainant had approached
accused nos. 2 to 6 for refund of share application money
and every time, under one and other pretext, they avoided
to make the payment. It is further averred that, the father
and brother of the complaint on various occasions
demanded the due amount, either by texting on mobile or
through e-mail.
It is further averred that, vide communication dated
06.03.2017, the accused company through its signatory
accused no. 2, agreed and acknowledged the refund of
share application money and resolution to this effect was
also passed by the Board of Directors. The accused no. 1
Company through its authorized signatory vide
communication dated 19.05.2017 issued post dated
cheques as referred in para-4 of this order.
R/SCR.A/8538/2022 JUDGMENT DATED: 11/04/2023
It is averred in the complaint that, on 24.07.2019,
the cheque in question dated 27.07.2019 drawn on ICICI
Bank amounting Rs.2,98,32,240/- duly signed by accused
nos. 2 and 5 was presented for realization with the Bank
and same returned únpaid' on the next date, with the
endorsement "funds insufficient''. Notice as contemplated
under the Act was served upon the accused nos. 1 to 6
and during stipulated time, they failed to make the
payment of the cheque.
It is specifically averred in the complaint that
accused nos. 2,3 and 4 in their capacity as Directors of
accused No. 1 company and accused Nos. 5 and 6 in
capacity of POA holder of promoters of the accused no. 1
company, are jointly and severally liable to refund the said
amount as per the agreement dated 14.04.2016 and did
not have exercised any due diligence to prevent the
commission of offence and same is committed within their
knowledge.
10. In the aforesaid facts, the private complaint being CC No.
4299 of 2019 registered on 03.09.2019 and accordingly,
the Additional C.J.M. Kalol, issued summons. It needs to be
noted that, the oral evidence of the complainant side
concluded before the trial Court. The matter is at the stage
of recording further statement of the applicant accused.
This petition is filed by the applicant accused at the stage
of further statement.
R/SCR.A/8538/2022 JUDGMENT DATED: 11/04/2023
11. Mr. R.R. Marshall, learned Senior Counsel appearing for
and on behalf of the applicant raised the following
contentions :
(i)The applicant herein has been arraigned as accused no.
6 mainly on the ground that, he was the signatory of the
two agreements. It is in this context, he argued that, the
applicant herein being an elder person of the family and
POA of the promoters-cum-share holders signed it for
and on behalf of the accused, however, on perusing the
agreements, it does not transpires that the applicant
herein is Director or Representative of the Company.
Thus, therefore, merely applicant being a signatory of
the agreement, it cannot be said that he was director or
representative of the company or involved in day to day
affairs of the company.
(ii) The applicant already resigned as a Director of the
Company with effect from 01.02.2013 and same was
approved by the Board of Directors and notified to the
ROC in a prescribed form (Form No. 32) and same is
produced at page-101 and 103 of this writ petition.
Thus, it is evident that, at relevant time, the applicant
herein neither holding any post in the company as a
Director or as a Share Holder nor worked as a
representative of the company and do not have any role
in functioning of the accused no.1 Company.
R/SCR.A/8538/2022 JUDGMENT DATED: 11/04/2023
(iii) The applicant is neither signatory of the cheque nor
at his instance, the cheque in question issued by the
accused Company.
(iv) From the complaint, it appears that, no specific
averments are made by the complainant to attract the
provision of Section 138 of N.I Act. The cheques in
question were not given by the applicant in his personal
capacity. No averments are made in the complaint that
the applicant is involved in day to day affairs of the
company at the time when the offence was committed
or he was in charge of and responsible to the company
for the conduct of its business. It is settled law that, to
attract the case under Section 141, a specific role must
have been played by the Director or person in charge of
the company for fastening vicarious liability. In the facts
of present case, the applicant was neither Director of
the company, nor, in charge of or was responsible in day
to day affairs of the company. There is no evidence on
record to show that, the applicant being a
representative of the company had acted and he could
be vicariously held liable for the offence, with which he
is charged. It is mandatory on the part of the
complainant to spell out as to how and in what manner
the accused no.6 - applicant herein was in charge of and
was responsible to the accused company for the conduct
of its business. Merely the applicant had signed the two
agreements in the capacity as a power of attorney
holder of the promoters of the company, he cannot be
R/SCR.A/8538/2022 JUDGMENT DATED: 11/04/2023
held vicariously liable for the act of the company. Mere a
statement in the complaint, without any specific role,
attributed to the applicant herein, is not sufficient for
proceedings under Section 141 of the Act.
(v) That, no offence as contemplated under Section 138
is made out against the applicant herein as the same is
being lodged with intent to mounting pressure on the
accused to settle the dispute.
12. To support the aforesaid submission, learned Counsel has
relied upon the case of Sunita Palita and others Vs. M/
s Panchami Stone Quarry [2022 Live law (SC) 647],
the Apex Court after referring the earlier judgments, (SMS
Pharmaceutical Ltd Vs. Neeta Bhalla (2005) 8 SCC
89, KK Ahuja Vs. V.K. Vora, (2009) 10 SCC 148,
National Small Industries Corporation Vs.
Harmitsinh Paintal, (2010) 3 SCC 330), it was held
that, impleadment of Directors or persons of an accused
Company, on the basis of the statement that, they are in-
charge of and responsible for the conduct of the business
of the company, without anything more, does not fulfill the
requirement of Section 141 of the N.I. Act.
13. In view of the aforesaid contentions, learned Senior
Counsel would submit that the allegations in the complaint
even if they are taken at their face value, and accepted in
their entirety, do not prima-facie constitute an offence or
make out a case against the accused herein. The powers
to interdict a proceedings either at the threshold or at the
R/SCR.A/8538/2022 JUDGMENT DATED: 11/04/2023
inter-mediation stage of trial, is inherent in a High Court on
the broad principle that, the allegations made in the FIR or
Criminal Complaint, prima-facie do not disclose a triable
offence, there can be no reason as to why the accused
should be made to a suffer the agony of a legal
proceedings. Thus, considering the peculiar facts and
circumstances of the present case, case is made out for
the exercise of inherent powers under Section 482 of the
Code and the proceedings may be quashed as under the
law, the applicant has no liability towards the disputed
cheques.
14. On the other hand, learned Senior Counsel Mr. Yogesh
Lakhani appearing for the respondent no. 2 - original
complainant herein has submitted that, there are specific
averments in the complaint that, being a signatory of the
two agreements, the applicant was involved in day to day
affairs of the management of accused no. 1 Company and
was actively involved in the monetary transaction of the
Company and the company was paying salary to the
applicant herein, which is evident that the applicant, at
relevant time, was in-charge of and was responsible to the
company for the conduct of its business and it was within
his knowledge that, cheques issued towards the legal
liability and same were returned unpaid. Thus, prima-facie,
it is established that, the accused no. 1 Company
committed an offence and the accused being an in-charge
of the conduct of the business, would be deemed to be
liable for the offence under Section 138 of the Act.
R/SCR.A/8538/2022 JUDGMENT DATED: 11/04/2023
Referring to the pleading, more particularly, paras-3, 4, 11,
12, 15, 16, 23 and 25 of the complaint, specific averments
are made to attract the provision of Section 141 of the N.I.
Act. He submitted that, out of five cases, four cases are at
the stage of recording of further statement of the accused
and under the guise of pendency of the petition and
despite the warrant issued by the Court, the applicant did
not remain present before the Court and has contributed
in delaying the proceedings. Thus, when the trial Court is
seized with the matter, let the trial be completed. The
issue raised which requires adjudication upon leading
evidence and it is open to the applicant to lead the
evidence before the trial Court to show that he never
associated in any manner with the accused no.1 company,
nor involved in day to day management of the company.
15. In the aforesaid contentions, learned Senior Counsel Mr.
Lakhani would submit that, when the basic averments to
attract section 141 of the N.I. Act are made in the
complaint, which is sufficient to make out a case against
the applicant herein and therefore, when the trial is at the
fag end, the High Court at this stage would not enter into
disputed facts and therefore, no any exceptional case is
made out by the applicant to exercise the inherent powers
under Section 482.
16. Before arriving at any conclusion, it would be appropriate
to first scrutinize relevant provision of Section 141 of the
N.I. Act which reads as under:
R/SCR.A/8538/2022 JUDGMENT DATED: 11/04/2023
"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.
(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."
17. In the case of S.M.S. Pharmaceuticals Limited vs. Nita
Bhalla reported in (AIR 2005 SC 3512), the Full Bench of
the Supreme Court examined the ambit and scope of
Section 141 of the N.I. Act. It is held that, section 138
casts criminal liability punishable with imprisonment or
fine or with both on a person who issue a cheque towards
discharge of a debt or liability as a whole or in part.
Section 141, extends such criminal liability in a case of a
company to every person who at the time of offence was
R/SCR.A/8538/2022 JUDGMENT DATED: 11/04/2023
in charge of and was responsible for the conduct of the
business of the company. By deeming provision contained
in Section 141 of the Act such person is vicariously liable
to be held guilty for the offence under Section 138 and
punished accordingly. The normal rule in cases involving
criminal liability is that, no one is to be held criminal liable
for an act of another. This normal rule is however subject
to exception on account of specific provision being made
in the statutes extending liability to others. Section 141 of
the Act is an instance of specific provision which in case an
offence under Section 138 is committed by a company,
extends criminal liability for dishonour of cheques to
officers of the company. Section 141 contains conditions
which have to be satisfied before the liability can be
extended to the officers of a company. Since the
provisions creates criminal liability, the conditions have to
be strictly complied with. The conditions are intended to
ensure that, a person who is sought to be made vicariously
liable for an offence of which the principal accused is the
company, had a role to play in relation to the incriminating
act and further that, such a person should know what is
attributed to him to make him liable. In other words,
persons who had nothing to do with the matter need not
be roped in. A company being a juristic person, all its
deeds and functions are the result of acts of others.
Therefore, officers of a company who are responsible for
acts done in the name of the company are sought to be
made personally liable for acts which result in criminal
action being taken against the company. It makes every
R/SCR.A/8538/2022 JUDGMENT DATED: 11/04/2023
person who, at the time of offence was committed, was in
charge of, and was responsible to the company for the
conduct of business of the company, as well as the
company liable for the offence. The proviso to the sub-
section contains an escape route without their knowledge
or that they had exercised all due diligence to prevent
commission of the offence.
18. In the case of S.M.S. Pharmaceuticals (supra), the
following questions were referred for determination:
" (a) Whether for purposes of Section 141 of the
Negotiable Instruments Act, 1881, it is sufficient if
the substance of the allegation read as a whole
fulfills the requirements of the said section and it is
not necessary to specifically state in the complaint
that the person accused was in charge of, or
responsible for, the conduct of the business of the
company.
(b) Whether a director of a company would be
deemed to be in charge of, and responsible to, the
company for conduct of the business of the
company and, therefore, deemed to be guilty of the
offence unless he proves to the contrary.
(c) Even if it is held that specific averments are
necessary, whether in the absence of such
averments the signatory of the cheque and /or the
managing directors or joint managing director who
admittedly would be in charge of the company and
responsible to the company for conduct of its
business could be proceeded against."
19. In S.M.S. Pharmaceuticals (supra), the above questions
were answered by the Supreme Court in the following
R/SCR.A/8538/2022 JUDGMENT DATED: 11/04/2023
terms:
"16. ... ... ....
(a) It is necessary to specifically aver in a complaint
under Section 141 that at the time the offence was
committed, the person accused was in charge of,
and responsible for the conduct of business of the
company. This averment is an essential
requirement of Section 141 and has to be made in a
complaint. Without this averment being made in a
complaint, the requirements of Section 141 cannot
be said to be satisfied.
(b) The answer to question posed in sub-para (b)
has to be in negative. Merely being a director of a
company is not sufficient to make the person liable
under Section 141 of the Act. A director in a
company cannot be deemed to be in charge of and
responsible to the company for conduct of its
business. The requirement of Section 141 is that the
person sought to be made liable should be in
charge of and responsible for the conduct of the
business of the company at the relevant time. This
has to be averred as a fact as there is no deemed
liability of a director in such cases.
(c) The answer to question (c) has to be in
affirmative. The question notes that the Managing
Director or Joint Managing Director would be
admittedly in charge of the company and
responsible to the company for conduct of its
business. When that is so, holders of such positions
in a company become liable under Section 141 of
the Act. By virtue of the office they hold as
Managing Director or Joint Managing Director, these
persons are in charge of and responsible for the
conduct of business of the company. Therefore,
they get covered under Section 141. So far as
signatory of a cheque which is dishonoured is
concerned, he is clearly responsible for the
incriminating act and will be covered under Sub-
section (2) of Section 141."
R/SCR.A/8538/2022 JUDGMENT DATED: 11/04/2023
20. In light of the settled law propounded by the Apex Court
and considering the peculiar facts and circumstances of
the present case, the issue arise for determination,
whether the proceedings of private complaint are liable to
be quashed in exercise of extra ordinary and inherent
jurisdiction?
21. Heard at length learned counsel for the respective parties
and perused the contents of the complaint and material
placed on record.
22. It is the contention raised by the applicant that, at relevant
time, he had signed two agreements for and on behalf of
promoters, except this, he had no role to play in the
alleged offence and therefore, his case would not fall
under Section 141 of the Act and ingredients are not
satisfied. The applicant herein has been arraigned as
accused no.6 in the complaint. From the complaint, it
appears that, the accused no.2, 3 and 4 are Directors of
accused no.1 company. It is averred that, the accused
no.5 and 6 i.e. present applicant and one Uvesh Yunush
are actively involved in day to day transaction/affairs of
the company and authorized signatory of the accused
no.1. It is further averred in complaint that, accused no.2,
5 and 6 had entered upon two agreements, in the capacity
as a power of attorney holder of the promoters and
authorized signatory. It is further averred that, they
approached the complainant for financial aid to infuse
fresh capital and after paying a substantial amount
totaling Rs.20 crores, the accused no.1 to 6 failed to allot
R/SCR.A/8538/2022 JUDGMENT DATED: 11/04/2023
the shares and finally, issued cheques, as referred above
for discharge of their liability.
23. In the aforesaid admitted facts, it is clear that, despite his
resignation from the company, as a Director, the applicant
herein came into contact with the complainant and others
and being an authorized power of attorney holder of the
promoters, entered into two agreements and accordingly,
parties have acted upon as per the terms and conditions of
the understanding. The accused no.2 to 6 belongs to
business family and doing their business jointly. The
applicant herein had signed the agreements in the
capacity as POA of the promoters and authorized
signatory. The copy of the income tax returns for the
Assessment Year 2017-18 filed by the applicant Zafar
Sareshwala would show that at the relevant time, he was
serving with the accused no.1- company as a Chief
Operating Officer (Sales & Marketing). It is duty of the
applicant to produce the copy of power of attorney, to
substantiate the allegations leveled in the complaint. It is
his duty to explain why he had signed two agreements as
an authorized signatory. In such circumstances,
considering his power to sign the agreement as authorized
signatory and attorney of the promoters would rise
reasonable inference that at the relevant time, he was
representing the accused no.1 company and its promoters
and was involved in day to day affairs of the company and
having knowledge about the entire transaction including
the return of cheque. Thus, this Court is of prima-facie
R/SCR.A/8538/2022 JUDGMENT DATED: 11/04/2023
opinion that, the averments in the complaint are sufficient
for the purpose of summoning the applicant herein and
the trial Court has rightly issued summons. The criminal
complaint pending before the trial Court is at the stage of
completion as the matter is at the stage of recording
further statement of the accused-applicant. It is open to
the applicant to lead the evidence before the trial Court to
show that, he had no role to play in the alleged
transaction, nor, in any manner, he was representing the
company - accused no.1 and he having no knowledge
about the alleged act of the company.
24. The grounds for quashing a criminal proceeding discussed
by the Apex Court in several judgments including State of
Haryana vs. Bhajanlal (AIR 1992 SC 604). In the case
of Bhajanlal (supra), the Apex Court gave a note of
caution, on the powers of quashing of criminal proceeding.
In para-103, it is held that, the power of quashing a
criminal proceeding should be exercised vary sparingly
and with circumspection and that too, in the rarest of rare
case; that the Court will not be justified in embarking upon
an inquiry as to the reliability or genuineness or otherwise
of the allegations made in the complaint and that the
extra ordinary or inherent powers do not confer an
arbitrary jurisdiction on the Court to act accordingly to its
whim and caprice.
25. In light of the settled principle of law and applying it to the
facts of the present case, this Court is of considered
R/SCR.A/8538/2022 JUDGMENT DATED: 11/04/2023
opinion that, the averments made in the complaint are
sufficient to summon the applicant herein and at this
stage, it cannot be said that, prima-facie, no offence is
made out against the applicant. This Court, therefore, find
no merits in the applications. Hence, all the applications
stand dismissed. Rule is discharged. Interim relief stands
vacated forthwith.
26. In view of disposal of main applications, interim
applications would not survive and stand disposed of
accordingly. It is needless to say that, the observations
made hereinabove is confined to determination of the
issue raised in the present applications and the trial Court
shall decide the case on its own merits without being
influenced by the observations made herein. Registry is
directed to keep copy of this judgment in each matter.
(ILESH J. VORA,J)
27. After the judgment is pronounced, learned counsel Mr. Atit
Thakore requests to continue the interim relief to enable
the applicant to approach higher forum. Learned
advocates for respondents objected to the request made
by learned counsel for the applicant. Initially, no interim
relief was granted but after conclusion of the arguments of
the parties and when the matters were fixed for orders,
the Court has directed the trial Court not to proceed
further with the cases. In view of the reasons for dismissal
R/SCR.A/8538/2022 JUDGMENT DATED: 11/04/2023
of the applications, the request for extension of the interim
relief is not acceded to.
(ILESH J. VORA,J)
P.S. JOSHI
