Gujarat High Court
Rakeshbhai Fulchandbhai Gautam vs State Of Gujarat on 19 February, 2024
NEUTRAL CITATION
R/CR.A/85/2024 JUDGMENT DATED: 19/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 85 of 2024
With
R/CRIMINAL APPEAL NO. 86 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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RAKESHBHAI FULCHANDBHAI GAUTAM
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR. PRERAK R BHATT(11381) for the Appellant(s) No. 1
MR VISHWAS SHAH FOR MS BHAVNA V SHAH(11047) for the
Opponent(s)/Respondent(s) No. 2,3,4,5
MS MONALI BHATT APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 19/02/2024
ORAL JUDGMENT
1. Since the issue raised in these appeals is similar, they are
being decided by a common judgment.
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2. These appeals are filed challenging the judgment and
order passed by the learned Additional Chief Judicial
Magistrate, Vapi dated 03.10.2023 in Criminal Case Nos.1396
of 2022 and 1397 of 2022 acquitting the respondents -
accused for the charge under Section 138 of the Negotiable
Instruments Act as well as the order dated 10.10.2023 passed
below exh.25 and 34 whereby, the complainant was imposed
cost of Rs.25,000/-.
3. At the outset, the appeals were not pressed on merits
however, notice in the applications for seeking leave to prefer
an appeal was issued for the limited purpose of impugned
order below exh.25 and 34.
4. It is the case of the complainant that three complaints
were filed by the complainant under Section 138 of the
Negotiable Instruments Act being Criminal Case Nos.1395 of
2022, 1396 of 2022 and 1397 of 2022 on 10.06.2021 before
the competent Court. On being summoned, the accused
appeared and on behalf of the accused, one Mahendrabhai
Jobaliya accepted the liability and issued fresh cheque in
favour of the complainant on 20.06.2022 by way of
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communication dated 02.09.2022. In view of the above
settlement, one case being Criminal Case No.1395 of 2022 was
withdrawn and thereafter, the cheque was deposited with the
bank which was again returned and for that, the separate case
was registered before the competent Court being Criminal
Case No.5684 of 2022. As the aforesaid cheque was returned,
the remaining two complaints i.e. Criminal Case Nos.1396 of
2022 and 1397 of 2022 were not withdrawn wherein, the
learned trial Court has dismissed the complaint on the ground
that on arriving the settlement, separate cheque was issued
and on dishonour of the same, a fresh complaint is filed and,
therefore, for the same dues, two proceedings cannot be
initiated together as per the decision rendered by the Hon'ble
Apex Court in the case of M/s.Gimpex Private Ltd. v/s. Manoj
Goel reported in (2021) 11 SCR 432.
5. Alongwith the order of dismissal of complaint, the notice
was issued below Exh.34 in Criminal Case No.1397 of 2022 and
exh.25 in Criminal Case No.1396 of 2022 upon the complainant
that why the cost should not be imposed for wasting of judicial
time of the Court. The complainant filed a reply to the said
show cause notice stating that there was no any intention to
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waste the time of the Court however, as the cheque which was
issued qua the settlement, was not honoured and, therefore,
these two impugned complaints were not withdrawn.
6. After considering the submissions advanced by the
learned advocate for the complainant, the learned trial Court
come to the conclusion that out of three cases, one case was
withdrawn by the complainant however, the two impugned
complaints were not withdrawn and for the same debt, the
another complaint was filed for the purpose of dishonoring of
the cheque, which was issued qua settlement.
7. By the impugned order, the learned trial Court has
imposed the cost of Rs.25,000/- upon the complainant which is
impugned before this Court.
8. Heard learned advocate Mr.Prerak Bhatt for the
complainant and learned advocate Mr.Vishwas Shah for the
respondents - accused.
9. The learned advocate submits that there was no any
intention of the complainant to waste the time of the Court as
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the cheque which was issued qua the settlement was
dishonoured, therefore, the two complaints were not
withdrawn. The learned advocate fairly submits that it is true
that the separate complaints were filed challenging the
dishonouring of the cheque which was issued qua the
settlement. Learned advocate submits that even before this
Court also, though the appeal was filed challenging the order
of dismissal of the complaint as well as imposing the cost, but
at the first instance, the appeal was withdrawn challenging the
order on merits however, confining his argument qua the cost
part, the learned advocate has pressed for that. The learned
advocate submits that due to the dishonouring of the cheque
which was issued, which is the subject matter of the impugned
complaints, the complainant occurred a huge financial loss
however, the second cheque which was issued qua the
settlement, was also dishonoured and by imposing the cost of
Rs.25,000/-, the complainant was put in the jeopardy.
10. In view of the above submissions, learned advocate prays
to set aside the order below exh.25 and 34, whereby the cost
of Rs.25,000/- was imposed.
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11. As against the same, learned advocate Mr.Vishwas Shah
for the respondent No.2 submitted that two parallel
proceedings cannot be initiated together for the same debt as
per the law laid down by the Hon'ble Apex Court in the case of
M/s.Gimpex Private Ltd. (supra), therefore, the learned trial
Court has rightly dismissed the complaints and imposed the
cost of Rs.25,000/- upon the complainant and therefore, no
interference is required.
12. Considering the submissions advanced by both the
parties, it transpires that the present complaint came to be
filed by the complainant on 10.06.2021 before the learned trial
Court for dishonoring of the two cheques of Rs.10,70,494/- and
Rs.14,84,374/-. On issuing the summons, the accused
appeared and one Mahendrabhai Jobaliya has issued a fresh
cheque in favour of the complainant which was communicated
vide communication dated 20.6.2022. Out of three complaints,
one complaint being Criminal Case No.1395 of 2022 came to
be withdrawn and Criminal Case Nos.1396 of 2022 and 1397 of
2022 were not withdrawn because of the dishonoring of the
cheque which was issued by said Mahendrabhai Jobaliya. On
dishonoring of the cheque which was issued by the
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Mahendrabhai Jobaliya, a separate complaint came to be filed
being Criminal Case No.5684 of 2022, wherein the present
respondents as well as said Mahendrabhai were joined as party
respondents. The said criminal case is pending for adjudication
before the competent Court.
13. Thereafter, the impugned complaints were proceeded
further wherein, the Court come to the conclusion that as per
the law laid down by the Hon'ble Apex Court in the case of
M/s.Gimpex Private Ltd. (supra), two parallel proceedings
cannot be continued for the same debt, therefore, the
complaints were dismissed on merits. Along with the dismissal
order, the show cause notice was issued to the complainant
below exh.25 and 34, wherein the complainant has filed the
application that as per the terms of the settlement, one
complaint is to be withdrawn before depositing the cheque
which was communicated vide communication dated
02.09.2022 and, therefore, the complaint being Criminal Case
No.1395/2022 was withdrawn. On depositing the cheque, it
was dishonored and the complainant realized that he was
cheated by the respondents -accused and, therefore, the
remaining two complaints were not withdrawn. It is averred in
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the aforesaid application that accused appeared before the
learned Court on 27.04.2023 and the trial was concluded on
03.10.2023. There was no any non-co-operation on the part of
the complainant neither he had intended to delay the
proceedings before the Court.
14. From the record, it further transpires that for dismissing
the complaint as well as for imposing the cost, no separate
reasons were assigned by the learned trial Court, though
separate orders were passed. The common reason in both the
impugned orders is that on dishonouring of the fresh cheque,
which was given qua the settlement, fresh complaint is filed
which is pending for the adjudication and, therefore, two
parallel proceedings cannot be continued for the same debt. It
is true that as per the law laid down by the Hon'ble Apex Court
in the case of M/s.Gimpex Private Ltd. (supra), the complainant
cannot pursue two parallel prosecutions for the same
transactions but, it does not mean that there was ill intention
on the part of the complainant to waste the judicial time of the
Court as within a period of six months only, the trial was
concluded, therefore, also, by imposing the cost upon the
complainant, the complainant may not be victimized or made
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to suffer because of the act which he has not done
intentionally, as observed by the learned trial Court.
15. In view of the same, this Court is of the view that
impugned orders below exh.25 and 34 by which cost of
Rs.25,000/- was imposed, are required to be quashed and set
aside.
16. Resultantly, the appeals are partly allowed in view of the
above observations. The orders dated 10.10.2023 passed
below exh.25 in Criminal Case No.1396 of 2022 and exh.34 in
Criminal Case No.1397 of 2022 whereby, the complainant was
imposed cost of Rs.25,000/- are hereby quashed and set aside.
(M. K. THAKKER,J)
Hitesh
