Gujarat High Court
Shailesh Khimchandbhai Gaglani vs State Of Gujarat on 23 January, 2024
NEUTRAL CITATION
R/SCR.A/987/2024 ORDER DATED: 23/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 987 of
2024
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SHAILESH KHIMCHANDBHAI GAGLANI
Versus
STATE OF GUJARAT
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Appearance:
MR YASH H JOSHI(6495) for the Applicant(s) No. 1
MR. NILESH K PATEL (14254) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MS KRINA CALLA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 23/01/2024
ORAL ORDER
1. Heard learned advocates for the respective parties.
2. By way of this petition under Section 482 of the code of
Criminal Procedure, 1973, the petitioner seeks to invoke the
inherent powers of this Court, praying for quashing of the impugned
order dated 14.09.2023 passed by learned 9th Additional Sessions
Judge, Rajkot, being Criminal Revision Application No.156/2023 as
well as order dated 12.06.2023 passed by learned Special Judge,
(Negotiable Instruments Act), Rajkot, in Criminal Case No.4638/2018
below Exh:74.
3. It is the case of the petitioner that the petitioner has issued a
cheque of Rs.1,00,000/- to the complainant for payment of interest,
which came to be deposited by filling different amount in the
cheque. Further the complainant produced a disputed promissory
note at Exh:11, wherein the Petitioner's signature is shown, which in
fact, as per the say of the Petitioner, he has not made any signature
on the said promissory note. It is thereby case of the Petitioner that
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the signatures in the cheque as well as in the promissory note are
different. Therefore, the said documents are required to be sent to
FSL for examination.
4. From the record, it appears that at the instance of respondent
No.2, Criminal Case No.4638/2018 is filed under the provisions of
Negotiable Instruments Act, which is pending before the Court of
learned JMFC, Rajkot, wherein applications below Exhs:11 and 12
came to be filed by the petitioner seeking sending them to FSL for
examination of signatures.
5. Having heard learned counsel for the parties and perusing the
material placed on record, it appears that application filed below
Exh:74 came to be dismissed as statement under Section 313 of
Cr.P.C came to be recorded and the matter was kept for evidence of
the accused. Being aggrieved by the same, the petitioner preferred
Criminal Revision Application No.156/2023, which also came to be
dismissed by assigning reasons, more particularly, on the ground
that the petitioner has not disputed the signature over the cheque.
Proceedings are going on under Section 138 of the Act. The
petitioner has filed an application to send the documents i.e.
promissory note to FSL. It is needless to say that definitions of
promissory note and cheque are defined in Sections 4 and 6 of the
negotiable Instruments Act respectively. Here issuance of cheque is
not in dispute. Proceedings under Section 138 qua dishonor of
cheque. Even cognizance of the offence is not disputed. Learned
advocate has mainly relied on the judgment delivered in the case of
T. Nagappa Vs. Y.R Murlidhar, reported in AIR 2008 Sc 2010 to
buttress his argument and submitted that, if the documents are not
sent to FSL, which amounts to denial of fair trial and examination of
determination of the case to send documents to FSL is required.
Exh:11 is promissory note and Exh:12 are the disputed documents.
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Cheques those are required to be sent to FSL, but how both the
documents are relevant and for what reason promissory note is
relevant to decide the said issue. Even the cheque itself is produced
on record as an evidence and even in the reply and in cross-
examination also, no specific defense has been put forward by the
Petitioner. Even in the cheque and promissory note, signature is
admitted. So far provisions of Section 20 is concerned, which
provides authorization to the holder to complete inchoate
instrument once the person signatures and delivers to another. Here
the signature on the cheque or leaf of the cheque is not disputed.
6. Considering the aforesaid, once the signature on the cheque is
admitted, question does not arise to send it for further examination
to FSL. In the case on hand, once the signature is admitted, as per
the law laid down in the case of Kalamani Tex and Anr. Vs. P.
Balasubramanian, reported in (2021) 5 SCC 283, the Court
shall have to presume about legally enforceable debt under Section
139 of the Act. The Hon'ble Apex Court in case of Rajesh Jain Vs.
Ajay Singh reported in (2023) 10 SCC 148, held that as per
Section 139 of the Act, the word "until the contrary is proved", do
not mean that the accused must necessarily prove the negative that
the instrument is not issued in discharge of any debt/liability, rather
the accused has the option to ask the court to consider the non-
existence of debt so probable that a prudent man ought under the
circumstances of the case, to act upon the supposition that debt did
not exist.
7. It is needless to say that criminal cases are required to be
decided on its facts and merits. In this regard, reference is required
to be made in the case of The Hon'ble Apex Court in the case of
Parasa Raja Manikyala Rao And Anr vs State Of A.P reported
in AIR 2004 SC 132, wherein, Hon'ble Apex Court held as under:
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"...Each case, more particularly a criminal case depends on
its own facts and a close similarity between one case and
another is not enough to warrant like treatment because a
significant detail may alter the entire aspect. In deciding
such cases, one should avoid the temptation to decide cases
(as said by Cordozo) by matching the colour of one case
against the colour of another. To decide therefore on which
side of the line a case falls, the broad resemblance to
another case is not at all decisive."
8. Further, it is argued that during the cross-examination by the
respondent No.2, he has admitted the signatures of the petitioner
on both the documents in his presence and he has no objection if
the said documents are send for handwriting export. Hence, the
complaint is not maintainable under Section 138 of the Negotiable
Instruments Act (referred to as the "NI Act"), 1881.
9. Having gone through the documents on record, it appears that
the applicant/petitioner has admitted his signature on the cheque
and disputed his signatures on the promissory note. This implies
that he has admitted his signature on the cheque and has not raised
any dispute. Hence, in view of the law laid down by the Hon'ble
Apex Court in the case of Tedhi Singh v. Narayan Dass Mahant,
reported in (2022) 6 SCC 735 and Kalamani Tex v. P.
Balasubramanian, reported in (2021) 5 SCC 283, the effect of
admission regarding the signature on the cheque is explained. Once
the signature is admitted, it is required to be presumed that the
cheque was issued towards consideration for a legally enforceable
debt. As per explanation of legal position on how to rebuts the
presumption under Section 139 NI Act and to raise presumption
under Section 139 of the NI Act, the Hon'ble Apex Court has clearly
explained in the case of Rajesh Jain v. Ajay Singh reported in
(2023) 10 SCC 148.
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10. Promissory note is used as corroborative piece of evidence. As
discussed herein-above, signature on the cheque is not disputed.
Even in cross-examination, the accused has put suggestion, wherein
also, it is admitted that in presence of the complainant, accused has
put his signatures on the cheque and promissory note. Considering
the aforesaid facts, suggestion becomes an evidence and even
otherwise, signature on the cheque is not disputed. Even Section 20
of the NI Act gives permission to fill up the documents by a holder.
In this regard, reference is required to be made in the case of
Oriental Bank of Commerce Vs. Prabodh Kumar Tewari,
reported in 2022 SCC Online 1089. The Hon'ble Apex Court held
as under:-
"18. Undoubtedly, it would be open to the respondents
to raise all other defenses which they may legitimately
be entitled to otherwise raise in support of their plea
that the cheque was not issued in pursuance of a pre-
existing debt or outstanding liability."
11. Even no such dispute is raised in the notice also and learned
Trial Court as well as Revisional Court came to the conclusion that
with a view to protract the litigation at the fag-end, such defense
has been raised by the accused. Learned advocate has relied on the
judgments rendered in cases of T. Nagappa Vs. Y.R.Murlidhar,
reported in AIR 2008 SC 2010 and (ii) Special Criminal
Application No.11178 of 2021. Prior to deal with the aforesaid
authorities, it is worth to mention that Criminal Case is required to
be decided on its own merit, rather relied on the precedent,
wherein, it was the case of the accused that the cheque was
obtained by his partner Amratbhai Gopalbhai Patel, who was in the
business of lending money. It was the specific case of the accused
that cheque was given to his Ex-partner and thus, the cheque was
not for any existing debt or liability. In that case, the cheque issued
towards the security in the year 2011 and ex-partner had misused
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the cheque though there was specific defense qua misuse of cheque
and there was bonafide and probable defense of the accused. Even
in the case of Shashikant Shamaldas Patel (SCR.A No.11178/2021),
cheque was fabricated and it was not issued towards any legal debt
or liability. Even the accused had also filed a complaint against the
complainant under Sections 406, 420, 506(2) and 114 of Indian
Penal Code, 1860 and thereafter, chapter case also filed against the
complainant and other witnesses. Further, as the cheque was
misused in collusion with one Amratbhai Patel and the complainant,
application came to be allowed. Here in the case on hand, no
bonafide and probable defense has been raised.
12. In view of the aforesaid facts, it prima facie reveals that in the
present case, no such defense put forward or raised by the accused.
Though it is worth to mention that the petitioner has not disputed
his signature on the cheque, he wants to prove that he has not put
his signature on promissory note, or otherwise, his signature is not
genuine, then, it is open for the Petitioner accused that he could
have procured certified copy of the specimen signature from the
bank and request could have been made to summon the concerned
bank official in defense for giving an evidence regarding
genuineness, or otherwise, signature on the cheque, but with a view
to protract the litigation, present petition is being filed.
13. In view of the above, the present applications stand dismissed
at admission stage. No order as to costs.
(HASMUKH D. SUTHAR,J)
SUCHIT
