Gujarat High Court
Jayshree Nilesh Chunawala vs State Of Gujarat on 28 November, 2023
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
R/CR.MA/13485/2022 ORDER DATED: 28/11/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 13485 of 2022
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JAYSHREE NILESH CHUNAWALA
Versus
STATE OF GUJARAT
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Appearance:
MR DHRUV K DAVE(6928) for the Applicant(s) No. 1
MS MAITHILI MEHTA, APP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 28/11/2023
ORAL ORDER
1. By way of this application, the applicant-original accused
no.2, seeks quashing of Criminal Complaint No.34152 of 2021
pending before the JMFC Court at Vadodara, filed by the
private respondent, under Section 138 of the Negotiable
Instruments Act, 1881.
2. The facts and circumstances giving rise to file present
application are that, the said private complaint is filed by the
private respondent against the applicant and her husband for
dishonour of the cheque, which was admittedly signed and
issued by the accused no.1-Nilesh Chunawala. The learned
trial Court based on the pleadings made in the complaint
issued summons and accordingly, the applicant and her
husband appeared before the trial Court.
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R/CR.MA/13485/2022 ORDER DATED: 28/11/2023
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3. In the aforesaid background facts, the applicant herein is
seeking quashing of proceedings of Criminal Case mainly on
the ground that, the cheque in question has not been signed or
issued by her and the accused no.1, in his individual capacity
has issued the cheque and therefore, by smart drafting, she
has been falsely roped into case which is nothing but a gross
misuse of the process of the Court and law.
4. This Court has heard learned counsel Mr. D.K. Dave and
Ms. Maithili Mehta for the respective parties. The private
respondent who has filed the complaint, though served, did not
remain present.
5. Mr. Dave, learned counsel for the applicant has submitted
that, the case filed against the applicant is nothing but a gross
abuse of process of Court and being a joint account holder
without any authority to issue and/or sign the cheque, she has
been falsely implicated in the case with ulterior motive and
therefore, the complaint lacks the ingredients of Section 138
so far the applicant is concerned. He further submitted that,
there is no legally enforceable liability on the part of the
applicant and otherwise there is nothing on record to show
that, the alleged amount due from the present applicant.
6. In view of the aforesaid contention, learned counsel Mr.
Dave has submitted that, the allegations made in the
complaint do not prima-facie constitute the offence and
therefore, continuation of the proceeding against the applicant
is nothing but abuse of process of law and same deserves to
NEUTRAL CITATION
R/CR.MA/13485/2022 ORDER DATED: 28/11/2023
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be quashed and set aside.
7. Ms. Maithili Mehta, learned Additional Public Prosecutor
appearing for the respondent-State has submitted that there
are disputed questions of facts and same can be decided only
after full fledged trial and at this stage, Court would not enter
into an inquiry as to the reliability or genuineness or otherwise
of the allegations made in the complaint.
8. The private respondent, though served, has chosen not
to appear.
9. Having heard the learned counsel appearing for the
applicant and learned Additional Public Prosecutor for the
respondent-State, this Court finds that the cheque in question
was issued and signed by the accused no.1 - Nilesh
Chunawala. In order to discharge the liability, the promissory
note was signed and issued by Nilesh Chunawala. There is
nothing on record to show that, at any point of time, the applicant
borrowed the amount from the private respondent. The
applicant being a joint account holder would not automatically
liable for the alleged dishonour of the cheque as she was not
authorized signatory of the cheque, nor it was issued by her.
Thus, the ingredients of Section 138 of N.I. Act are lacking so
far role of the present applicant is concerned. The case is fully
covered by the judgment of the Apex Court delivered in case of
Mrs. Aparna A. Shah vs. M/s Sheth Developers Pvt. Ltd. & Anr.
(AIR 2013 SC 3210) wherein it was held that, merely because
the wife being a joint holder of the account, no liability can be
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R/CR.MA/13485/2022 ORDER DATED: 28/11/2023
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fastened upon her under the provision of Section 138 of the
N.I. Act.
10. For the reasons recorded, this Court is of considered
opinion that, the criminal complaint filed against the applicant
herein is manifestly attended with malafide and is being
instituted to pressurize the principal accused who has issued
the cheque and therefore, the proceedings against the
applicant is nothing but a sheer misuse of the Court process.
The learned trial Court failed to appreciate the factual aspect
about the non-issuance of cheque by the applicant and
therefore, the Court has mechanically issued the summons
which deserves to be quashed and set aside.
11. In the result, the proceedings of Criminal Case No.34152
of 2021 pending before the Criminal Court at Vadodara and
consequential proceedings thereof are quashed qua the
applicant herein. Rule is made absolute. Direct service is
permitted.
(ILESH J. VORA,J)
TAUSIF SAIYED
