Gujarat High Court

Patel Somabhai Vithalbhai vs State Of Gujarat on 11 January, 2024

                                                                                   NEUTRAL CITATION




     R/CR.MA/13742/2019                              ORDER DATED: 11/01/2024

                                                                                    undefined




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
                   FIR/ORDER) NO. 13742 of 2019

==========================================================
                          PATEL SOMABHAI VITHALBHAI
                                    Versus
                              STATE OF GUJARAT
==========================================================
Appearance:
MS KIRAN R UDASI FOR MR BHUNESH C RUPERA(3896) for the
Applicant(s) No. 1
MR. JAY M THAKKAR(6677) for the Respondent(s) No. 2
MR SOAHAM JOSHI, APP for the Respondent(s) No. 1
==========================================================

 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                               Date : 11/01/2024

                                ORAL ORDER

1. This application is filed under Section 482 of the

Code of Criminal Procedure, 1973 (`the Code' for short) for

the following reliefs:

"18(A) YOUR LORDSHIPS may be pleased to admit and allow this petition;

(B) YOUR LORDSHIPS may be pleased to quash and set aside the impugned complaint being criminal case No.67789/2017 pending before the learned Additional Chief Metropolitan Magistrate, Negotiable Instruments Act, Special Court No.28, Ahmedabad, qua the present applicant; (C) Pending hearing and final disposal of the application, be pleased to stay the operation, implementation and execution

NEUTRAL CITATION

R/CR.MA/13742/2019 ORDER DATED: 11/01/2024

undefined

of the impugned complaint being criminal case No.67789/2017 pending before the learned Additional Chief Metropolitan Magistrate, Negotiable Instrument Act, Special Court No.28, Ahmedabad, qua the present applicant. (D) xxxxx"

2. It averred in the application that the impugned

complaint is filed against the applicant and his son, who are

accused nos.1 and 2 in the complaint respectively, alleging

that the complainant had business relations with the accused;

as the accused needed some money to develop their business,

they had taken advance/loan from the complainant of

Rs.11,50,000/- and for the said purpose, one promissory

note was executed by both the accused in favour of the

complainant; as the complainant was inquiring about the

money, the accused gave three cheques in favour of the

complainant; they were deposited but they returned

dishonoured; therefore the legal notice was issued but as no

reply was given, the complainant filed the impugned

complaint under Sections 138 and 142 of the NI Act.

3. Heard learned advocates for the parties.

4. The main contention raised by learned advocate for

the applicant is that the cheque which is signed by the

NEUTRAL CITATION

R/CR.MA/13742/2019 ORDER DATED: 11/01/2024

undefined

applicant was deposited by the complainant on 8.1.2016 which

was dishonoured on 11.1.2016. The legal notice for the same

is issued on 12.6.2017 i.e. after a period of more than one

year from the date of dishonour of the cheque. He submitted

that it is a settled legal position that the legal notice must

be sent by the payee to the drawer within 30 days of the

receipt of the information from the bank; therefore, the

complaint filed against the applicant is not maintainable.

5. Learned advocate for the applicant further

submitted that the allegations of another two cheques are not

qua the applicant but they are against the son of the

applicant who is accused no.2 in the complaint.

6. He, therefore, submitted that this application is

required to be allowed only on this ground and therefore

prays to allow this application and quash the impugned

complaint qua the applicant.

7. Per contra, learned APP for respondent no.1 and learned advocate for respondent no.2 have objected this

application and submitted that this Court should not exercise

its powers by interfering with the proceedings of recovery of

amount and the proceedings initiated under Section 138 of

the Act are perfectly justified. They submitted that the

NEUTRAL CITATION

R/CR.MA/13742/2019 ORDER DATED: 11/01/2024

undefined

applicant has not replied to the legal notice issued by the

complainant before filing of the complaint and therefore this

application is required to be dismissed on this ground alone.

8. I have heard learned advocates for the parties and

also perused the material produced on record.

9. At the outset, the provisions of Sections 138 and

142 of the NI Act are required to be seen, which read as

under:

"138. Dishonour of cheque for insufficiency, etc., of funds in the account.

Where any cheque drawn by a person on an account maintained by him with a banker for 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, 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 by an agreement made with that bank, such person shall be deemed to have committed an offence and shall without prejudice to any other provisions of this Act, be punished with imprisonment for "a term which may extend to two year", or with fine which may extend to twice the amount

NEUTRAL CITATION

R/CR.MA/13742/2019 ORDER DATED: 11/01/2024

undefined

of the cheque, or with both:

Provided that nothing contained in this section shall apply unless

(a) The cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier.

(b) The payee or the holder induce course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer, of the cheque, "within thirty days" of the receipt of information by him from the bank regarding the return of the cheques as unpaid, and

(c) The drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.

Explanation: For the purpose of this section, "debt or other liability"

means a legally enforceable debt or other liability."

142. Cognizance of offences.--

[(1)] Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),--

(a) no court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made

NEUTRAL CITATION

R/CR.MA/13742/2019 ORDER DATED: 11/01/2024

undefined

by the payee or, as the case may be, the holder in due course of the cheque;

(b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to section 138: 2 [Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period;]

(c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under section 138.].

[(2) The offence under section 138 shall be inquired into and tried only by a court within whose local jurisdiction,--

(a) if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated; or

(b) if the cheque is presented for payment by the payee or holder in due course, otherwise through an account, the branch of the drawee bank where the drawer maintains the account, is situated.

Explanation.--For the purposes of clause (a), where a cheque is delivered for collection at any branch of the bank of the payee or holder in due course, then, the cheque shall be deemed to have been delivered to the branch of the bank in

NEUTRAL CITATION

R/CR.MA/13742/2019 ORDER DATED: 11/01/2024

undefined

which the payee or holder in due course, as the case may be, maintains the account.]

10. From the above provisions, more particularly,

proviso (b) to Section 138 and proviso (b) to Section 142 of

the NI Act, it is clear that the complaint has to be made

within thirty days of receipt of information from the bank

regarding the dishonour of the cheques. In this case,

admittedly, the complainant has filed the complaint after one

and half year of the dishonour of the cheque, which is not

maintainable in the eye of law. Therefore, this Court is not

entering into further merits of the matter as the complaint is

required to be quashed only on this primary ground.

11. It is also relevant to refer to the judgment of the

Hon'ble Apex Court in the case of Inder Mohan Goswami

and Another versus State of Uttaranchal reported in (2007) 12 SCC 1, more particularly para : 23 & 24 thereof, which read as under :

"23. This Court in a number of cases has laid down the scope and ambit of courts' powers under Sec. 482 CrPC. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the

NEUTRAL CITATION

R/CR.MA/13742/2019 ORDER DATED: 11/01/2024

undefined

administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under Sec. 482 CrPC can be exercised:

[(i) to give effect to an order under the Code;] [(ii) to prevent abuse of the process of court, and] [(iii) to otherwise secure the ends of justice.]

24. Inherent powers under Sec. 482 CrPC though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself'. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the statute. Discussion of decided cases."

12. In view of above settled position of law and after

considering the facts as alleged in the complaint and

circumstances of the present case, it transpires that

continuation of further proceedings pursuant to the said

complaint will cause greater hardships to the applicant and

NEUTRAL CITATION

R/CR.MA/13742/2019 ORDER DATED: 11/01/2024

undefined

no fruitful purpose would be served if such further

proceedings are allowed to be continued. The Court must

ensure that criminal prosecution is not used as instrument of

harassment or for seeking private vendetta or with ulterior