Gujarat High Court
Manish Gopal Agrawal vs State Of Gujarat on 11 February, 2025
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R/CR.MA/23485/2024 ORDER DATED: 11/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 23485 of 2024
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MANISH GOPAL AGRAWAL
Versus
STATE OF GUJARAT & ANR.
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Appearance:
RAVI B SHAH(5346) for the Applicant(s) No. 1
MR. CHINTAN DAVE, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 11/02/2025
ORAL ORDER
1. The present application is filed for the following
prayers:
"A. YOUR LORDSHIPS may kindly be pleased to quash
and set aside the Order Dt. 15/07/2022 passed by Chief the
Ld. Additional Metropolitan Magistrate, Metropolitan
Ahmedabad, Court for No. 36, for issuing summons/process
against the applicant in Criminal Case No. 73742 of 2022,
at Annexure-A:
B. YOUR LORDSHIPS may kindly be pleased to quash and
set aside the complaint being Criminal Case No. 73742 of
2022 pending before the Court of Ld. Additional Chief
Metropolitan Magistrate, Metropolitan Court Ahmedabad No.
36, and further proceeding initiated thereto, at Annexure- A;
C. Pending hearing, petition, admission, and disposal final
this of of further proceedings Criminal Case No. 73742 of
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2022 are pending before the Court of Chief Ld. Ld.
Additional Metropolitan Magistrate, Metropolitan Court No.
36, Ahmedabad, may kindly be stayed in the interest of
justice;
D. Such other and further relief as deemed fit and proper
may kindly be granted in the interest of justice;"
2. Heard learned advocate Mr. Ravi B. Shah for the
applicant and learned APP, Mr. Chintan Dave for the
respondent - State.
3. Learned advocate for the applicant has contended that
the cheque which is deposited is more than the amount
which is due from the present applicant and therefore, no
offence can be made out considering the judgment of the
Hon'ble Apex Court reported in 2023 (1) SCC 578. He has
also contended that the Court at Ahmedabad has no
jurisdiction as the agreement executed at Mumbai and cheque
is also handed over at Mumbai, even then, the complaint is
filed at Ahmedabad and therefore, the proceedings are not
maintainable. Therefore, he submits that, the continuation of
proceedings under the provisions of Section 138 of the
Negotiable Instruments Act, 1881 ("N.I.Act" hereinafter)
amounts to abuse of process of law.
4. Learned APP has submitted that prima facie the
contentions raised by the applicant are required to be tested
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at the time of trial and it cannot be considered at this
stage. He further submits that the powers conferred under
Section 528 of the Bharatiya Nagarik Suraksha Sanhita
(B.N.S.S.), pari materia of Section 482 of the Criminal
Procedure Code, are required to be exercised very sparingly
and considering the fact that ex facie the case is not made
out or the continuation of the proceedings would amount to
abuse of process of law. He has further submitted that all
the contentions raised by the applicant are not required to be
accepted as it is without testing at them at the time of trial
and therefore, he submits that the present application is
required to be dismissed at this stage.
5. I have considered the rival submissions made at the
bar. I have also considered the provisions of Section 138,
139, 141 and 142 of the N.I.Act, 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
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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 be extended to two
years, or with fine which may extend to twice the amount 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 in due 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 cheque 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 purposes of this section, "debt or other liability"
means a legally enforceable debt or other liability.
139. Presumption in favour of holder.--
It shall be presumed, unless the contrary is proved, that the
holder of a cheque received the cheque of the nature referred
to in section 138 for the discharge, in whole or in part, of
any debt or other liability.
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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:
Provided further that where a person is nominated as a
Director of a company by virtue of his holding any office or
employment in the Central Government or State Government
or a financial corporation owned or controlled by the Central
Government or the State Government, as the case may be,
he shall not be liable for prosecution under this Chapter.
(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.
Explanation.--
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For the purposes of this section,--
(a) "company" means any body corporate and includes a firm
or other association of individuals; and
(b) "director", in relation to a firm, means a partner in the
firm.
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
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:
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
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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
which the payee or holder in due course, as the case may
be, maintains the account."
5.1 It transpires that the concerned Court while passing
impugned order dated 15.07.2022 below Exh.1 in Criminal
Case No.73742 of 2022 has prima facie applied its mind and
the Court has also satisfied itself that there is sufficient
grounds to proceed against the accused person under Section
138 of the N.I.Act, more particularly, when the accused
resides beyond the territorial jurisdiction of the concerned
Court. The Court has carried out inquiry and found that the
accused resides beyond the territorial jurisdiction of the
concerned Court, but, prima facie found that the cheque
issued by the accused and the complainant deposited the said
cheque in his bank account which is maintained at
Ahmedabad and the said cheque was dishonoured and as per
the provisions of Section 138(b) of the N.I.Act, notice is
issued by the complainant to the accused, but the accused
failed to make payment of the cheque amount, hence, the
trial Court after considering the provisions of Section 138
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read with Section 142 of the N.I.Act, found that the Court
has jurisdiction to take cognizance of the complaint filed
under the provisions of Section 138 of the N.I.Act. The
concerned trial Court has also perused the entire record and
averments made in the complaint and also examination-in-
chief of the complainant under Section 145 of the N.I.Act and
thereafter, the Court considered it appropriate to issue
process under the provisions of Sections 202 and 204 of the
Code of Criminal Procedure, 1973. It is apt to refer to the
said Sections, which read as under:
"202. Postponement of issue of process.
(1) Any Magistrate, on receipt of a complaint of an offence of
which he is authorised to take cognizance or which has been
made over to him under section 192 may, if he thinks fit,
[and shall, in a case where the accused is residing at a place
beyond the area in which he exercises his jurisdiction]
[Inserted by Act 25 of 2005, Section 19 (w.e.f. 23-6-2006).]
postpone the issue of process against the accused, and either
inquire into the case himself or direct an investigation to be
made by a police officer or by such other person as he thinks
fit, for the purpose of deciding whether or not there is
sufficient ground for proceeding :
Provided that no such direction for investigation shall be
made, -
(a) where it appears to the Magistrate that the offence
complained of is triable exclusively by the Court of Session; or
(b) where the complaint has not been made by a Court,
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unless the complainant and the witnesses present (if any)
have been examined on oath under section 200.
(2) In an inquiry under sub-section (1), the Magistrate may, if
he thinks fit, take evidence of witnesses on oath :
Provided that if it appears to the Magistrate that the offence
complained of is triable exclusively by the Court of Session, he
shall call upon the complainant to produce all his witnesses
and examine them on oath.
(3) If an investigation under sub-section (1) is made by a
person not being a police officer, he shall have for that
investigation all the powers conferred by this Court on an
officer-in-charge of a police station except the power to arrest
without warrant.
204. Issue of process.
(1)If in the opinion of a Magistrate taking cognizance of an
offence there is sufficient ground for proceeding, and the case
appears to be -
(a)a summons case, he shall issue his summons for the
attendance of the accused, or
(b)a warrant case, he may issue a warrant, or, if he thinks
fit, a summons, for causing the accused to be brought or to
appear at a certain time before such Magistrate or (if he has
no jurisdiction himself) some other Magistrate having
jurisdiction.
(2)No summons or warrant shall be issued against the accused
under sub-section (1) until a list of the prosecution witnesses
has been filed.
(3)In a proceeding instituted upon a complaint made in
writing, every summons or warrant issued under sub-section
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(1) shall be accompanied by a copy of such complaint.
(4)When by any law for the time being in force any process-
fees or other fees are payable, no process shall be issued until
the fees are paid and, if such fees are not paid within a
reasonable time, the Magistrate may dismiss the complaint.
(5)Nothing in this section shall be deemed to affect the
provisions of section 87."
5.2 On the perusal of the record available, it transpires
that pursuant to the notice issued by the present applicant,
reply is not given to the learned advocate, however, there is
some correspondence entered between the parties.
6. Considering all the above aspects, it transpires that
ingredients under the provisions of Section 138 of the N.I.Act
is prima facie satisfied, considering the provisions of Section
139 read with Section 142 of the N.I.Act. Moreover, the bank
account of the complainant is maintained at Ahmedabad and
therefore, the complainant is entitled to deposit the cheque at
Ahmedabad. It also transpires that the learned trial Court
has followed all the necessary procedures by holding
necessary inquiry and thereafter, satisfying the material that
the prima facie offence is made out, the Court has issued the
process. On the bare reading of the complaint, it cannot be
said that no offence is made out against the present
applicant neither it can be said that the continuation of the
proceedings pursuant to the said complaint will amount to
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abuse of process of law. All the contentions raised by the
applicant involve some question of fact, which are required to
be tested at the time of trial by leading cogent and proper
evidence by the parties concerned. Therefore, the judgment
which is relied on by the learned advocate for the applicant
is not helpful in the facts of the present case, however, there
is no quarrel about the ratio of that judgment, but that
judgment is given in different facts and circumstances of the
case, whereby, after holding full-fledged trial, the appeal is
preferred and thereafter, the matter is carried to the High
Court and thereafter to the Hon'ble Apex Court and at that
point of time those observations are made, which are not
helpful to the facts of the present case. In the present case,
the powers are required to be exercised under the provisions
of Section 528 of the Bharatiya Nagarik Suraksha Sanhita
(B.N.S.S.) and considering the settled position of law that
such powers should be exercised very sparingly as well as
considering the fact that no case is made out and that the
complaint is hit by the provisions of law or it cannot be
considered that the continuation of the proceedings amounts
to abuse of process of law.
6.1 Considering the ratio laid down by the Hon'ble Apex
Court in the cases of M/s. Neeharika Infrastructure Pvt. Vs.
State of Maharashtra reported in AIR 2021 SC 1918 as well
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as Indian Bank Association and Others Vs. Union of India
and others reported in 2014 (5) SCC 590, whereby, as per
the directions, the proceedings of the trial under Section 138
of the N.I.Act is required to be proceeded as expeditiously as
possible.
7. In view of the foregoing reasons, I am of the opinion
that the present application is nothing but an effort to
prolong the proceedings of the trial which is required to be
deprecated. Therefore, the present application lacks merit and
the same is required to be dismissed.
8. Accordingly, the present application is dismissed.
(SANDEEP N. BHATT,J)
SLOCK BAROT
