Gujarat High Court
Anuradha Menon vs State Of Gujarat on 14 February, 2025
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R/SCR.A/11195/2024 ORDER DATED: 14/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 11195 of 2024
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R/SPECIAL CRIMINAL APPLICATION NO. 11229 of 2024
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R/SPECIAL CRIMINAL APPLICATION NO. 11369 of 2024
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R/SPECIAL CRIMINAL APPLICATION NO. 11231 of 2024
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R/SPECIAL CRIMINAL APPLICATION NO. 11227 of 2024
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R/SPECIAL CRIMINAL APPLICATION NO. 11197 of 2024
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R/SPECIAL CRIMINAL APPLICATION NO. 11326 of 2024
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R/SPECIAL CRIMINAL APPLICATION NO. 11230 of 2024
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R/SPECIAL CRIMINAL APPLICATION NO. 11313 of 2024
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R/SPECIAL CRIMINAL APPLICATION NO. 11226 of 2024
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R/SPECIAL CRIMINAL APPLICATION NO. 11330 of 2024
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R/SPECIAL CRIMINAL APPLICATION NO. 11312 of 2024
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R/SPECIAL CRIMINAL APPLICATION NO. 11232 of 2024
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R/SPECIAL CRIMINAL APPLICATION NO. 11224 of 2024
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R/SPECIAL CRIMINAL APPLICATION NO. 11324 of 2024
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R/SPECIAL CRIMINAL APPLICATION NO. 11309 of 2024
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R/SPECIAL CRIMINAL APPLICATION NO. 11233 of 2024
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R/SPECIAL CRIMINAL APPLICATION NO. 11222 of 2024
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R/SPECIAL CRIMINAL APPLICATION NO. 11333 of 2024
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R/SPECIAL CRIMINAL APPLICATION NO. 11196 of 2024
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R/SPECIAL CRIMINAL APPLICATION NO. 11198 of 2024
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R/SPECIAL CRIMINAL APPLICATION NO. 11200 of 2024
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NEUTRAL CITATION
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R/SPECIAL CRIMINAL APPLICATION NO. 11203 of 2024
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R/SPECIAL CRIMINAL APPLICATION NO. 11214 of 2024
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R/SPECIAL CRIMINAL APPLICATION NO. 11215 of 2024
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R/SPECIAL CRIMINAL APPLICATION NO. 11216 of 2024
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R/SPECIAL CRIMINAL APPLICATION NO. 9890 of 2024
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ANURADHA MENON
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR. VIPUL B SUNDESHA(6689) for the Applicant(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
MR ADITYA JADEJA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 14/02/2025
COMMON ORAL ORDER
1. All these petitions are filed under Articles 226 and
227 of the Constitution of India read with Section 528 of the
Bharatiya Nagarik Suraksha Sanhita, 2023 (`BNSS' for short)
(para materia with Section 482 of the Code of Criminal
Procedure) for quashing and setting aside the complaints
being Criminal Case Nos.522 of 2019, 25301 of 2019, 25300
of 2019, 518 of 2019, 519 of 2019, 520 of 2019, 521 of 2019,
523 of 2019, 524 of 2019, 526 of 2019, 528 of 2019, 59 of
2019, 60 of 2019, 61 of 2019, 63 of 2019, 66 of 2019, 68 of
2019, 69 of 2019, 77 of 2019, 64 of 2019, 73 of 2019, 62 of
2019, 527 of 2019, 65 of 2019, 79 of 2019 and 525 of 2019,
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respectively, pending before the competent Court at District
Surat and Criminal Case No.2053 of 2019 pending before the
learned Additional Chief Judicial Magistrate, Gandhidham,
Kutch, under the provisions of the Negotiable Instruments
Act (`NI Act' for short).
2. As the common question of facts and law are
involved in these petitions, the company is same and the
director is the same, at the request of learned advocates for
the parties, they are heard together and disposed of by this
common oral order.
3. Rule returnable forthwith. Learned APP Mr.Jadeja
waives service of notice of rule for respondent no.1. Though
served, none appears for respondent no.2-complainant.
4. For the sake of convenience, the facts of Special
Criminal Application No.11195 of 2024 are considered, as
stated in the petition, which are as under:
4.1 It is averred in the petition that respondent no.2-
complainant has filed the complaint inter alia stating that
the complainant is proprietorship firm and doing business of
plywood; that the accused approached the complainant-
company for sale of various size of plywood and as per the
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request of the accused, the complainant sold goods-plywood
and the goods were delivered from time to time to the
accused; that as a capacity of director of the company, the
accused no.2 issued the cheque, which was presented for
payment, however, it was dishonoured with an endorsement
`payment stop by drawer'; therefore, the respondent no.2
issued a statutory demand notice under Section 138(B) of the
NI Act against all accused persons and as the amount was
not paid by the accused persons, the impugned complaint was
filed under the provisions of Section 138 of the NI Act,
which is prayed to be quashed by way of these petitions.
5. Heard learned advocates for the parties.
5.1 Learned advocate for the petitioners submitted that
on 11.9.2007, a company namely Opal Asia (India) Private
Limited came to be incorporated under the Companies Act for
purpose of running the different businesses i.e. shipping,
import-export and others; that the petitioner is wife of
original accused no.2-Ajith Menon and joined the company as
director with effect from 1.4.2098; that the petitioner is not
the signatory to the instrument in question issued on behalf
of the company; that the petitioner is also not responsible for
the day-to-day affairs of the company; therefore, the
impugned complaint is absolute abuse of process of law and
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not maintainable against the present petitioner; that the
petitioner cannot be made vicariously liable to be prosecuted
under Section 138 read with Section 142 of the NI Act since
the petitioner was not in charge of the day-to-day affairs and
was not responsible to the company for the conduct of the
business of the company when the cheques in question were
issued by the company and therefore the present petitions
are filed for quashing of the impugned criminal cases.
5.2 In support of his submissions, learned advocate for
the petitioner has relied on the following citations:
(1) Hitesh Verma V/s M/s Health Care at Home India
Pvt.Ltd. & Ors, decided on 29.1.2025 in Criminal Appeal
No.462 of 2025.
(2) Career Institute Educational Society V/s Om Shree
Thakurji Educational Society reported in 2023 LiveLaw (SC)
(3) S.P.Mani and Mohan Dairy V/s Dr.Snehalatha Elangovan
decided on 16.9.2022 passed in Criminal Appeal No.1586 of
2022.
(4) Yashovardhan Biral V/s Cecil Webber Engineering Ltd. &
Ors. decided on 11.4.2023 in Crl.M.C.1409 of 2018 by the
Delhi High Court.
(5) Nandlal B Chauhan V/s State of Gujarat & Ors. decided
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on 8.2.2022 passed in Special Criminal Application No.1839 of
2013, by this Court.
(6) Susela Padmavathy Amma V/s M/s Bharti Airtel Limited
decided on 15.3.2024 in Special Leave Petition (Criminal)
No.12390-12391 of 2022.
6. Per contra, learned APP for respondent no.1-state
has objected these applications 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.
7. Though served, none appears for the respondent
no.2-complainant.
8. I have considered the submissions made at the bar
and perused the material on record.
9. At the outset, the provisions of Sections 138 and
141 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
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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
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
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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."
"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 proceeded against and punished
accordingly:
Provided that nothing contained in this subsection 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 subsection (1),
where any offence under this Act has been committed by a
company and it is proved that the offence has been
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committed with the consent or connivance of, or is attribute
to, any neglect on the part of, any director, Manager,
secretary, or other office 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. 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 relating to a firm, means a partner in the
firm."
10. Now, if the facts of the present case are perused, it
transpires from the material on record and the averments
made in the complaint as well as this application that the
petitioner was the director of the company; that the statutory
notice was issued before filing the complaints and there is no
averment in the petitions and there is nothing coming on
record to show that the same was replied by the petitioner
to clear her stand that she is not responsible for the day-to-
day affairs of the company; the said contention is taken for
the first time in these petitions which ought to have been
taken at the time of giving reply to the notice itself. He
could have filed reply to the statutory notice itself and could
have pointed out all these facts at the notice stage itself as
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a foundation, which he is stating at this stage. A bald
statement at this stage would not help the petitioner to come
out of the allegations in the criminal case. The same has to
be proved by leading unimpeachable and uncontrovertible
evidence, for which, full-fledged trial is required. Without
testing the defence in a full-fledged trial, quashing of the
criminal cases at this stage would not be just and proper
and, therefore, this Court cannot exercise the powers under
Section 528 of the BNSS, at this initial stage.
11. At this stage, it is also fruitful to refer to the
judgment rendered by the Hon'ble Apex Court in the case of
S.P.Mani and Mohan Dairy V/s Dr.Snehalatha Elangovan
reported in 2022(13) Scale, page 543, more particularly,
paragraphs 43 to 46, which read as under:
"43. In the case on hand, we find clear and specific
averments not only in the complaint but also in the
statutory notice issued to the respondent. There are specific
averments that the cheque was issued with the consent of
the respondent herein and within her knowledge. In our
view, this was sufficient to put the respondent herein to
trial for the alleged offence. We are saying so because the
case of the respondent that at the time of issuance of the
cheque or at the time of the commission of offence, she was
in no manner concerned wtih the firm or she was not in-
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charge or responsible for day-to-day affairs of the firm
cannot be on the basis of mere bald assertion in this regard.
The same is not sufficient. To make good her case, the
respondent herein is expected to lead umimpeachable and
incontrovertible evidence. Nothing of the sort was adduced by
the respondent before the High Court to get the proceedings
quashed. The High Court had practically no legal basis to
say that the averments made in the complaint are not
sufficient to fasten the vicarious liability upon the respondent
by virtue of Section 141 of the NI Act.
44. We may also examine this appeal from a different angle.
It is not in dispute, as noted above, that no reply was
given by the respondent to the statutory notice served upon
her by the appellant. In the proceedings of the present type,
it is essential for the person to whom statutory notice is
issued under Section 138 of the NI Act to give an
appropriate reply. The person concerned is expected to
clarify his or her stance. If the person concerned has some
unimpeachable and incontrovertible material to establish that
he or she has no role to play in the affairs of the company/
firm, then such material should be highlighted in the reply
to the notice as a foundation. If any such foundation is laid,
the picture would be more clear before the eyes of the
complainant. The complainant would come to know as to
why the person to whom he has issued notice says that he
is not responsible for the dishonour of the cheque. Had the
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respondent herein given appropriate reply highlighting
whatever she has sought to highlight before us then
probably the complainant would have undertaken further
enquiry and would have tried to find out what was the
legal status of the firm on the date of the commission of
the offence and what was the status of the respondent in
the firm. The object of notice before the filing of the
complaint is not just to give a chance to the drawer of the
cheque to rectify his omission to make his stance clear so
far as his liability under Section 138 of the NI Act is
concerned.
45. Once the necessary averments are made in the statutory
notice issued by the complainant in regard to the vicarious
liability of the partners and upon receipt of such notice, if
the partner keeps quiet and does not say anything in reply
to the same, then the complainant has all the reasons to
believe that what he has stated in the notice has been
accepted by the noticee. In such circumstances what more is
expected of the complainant to say in the complaint.
46. When in view of the basic averment process is issued
the complaint must proceed against the Directors or partners
as the case may be. But if any Director or Partner wants
the process to be quashed by filing a petition under Section
482 of the Code on the ground that only a bald averment is
made in the complaint and that he is really not concerned
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with the issuance of the cheque, he must in order to
persuade the High Court to quash the process either furnish
some sterling incontrovertible material or acceptable
circumstances to substantiate his contention. He must make
out a case hat making him stand the trial would be an
abuse of process of court. He cannot get the complaint
quashed merely on the ground that apart from the basic
averment no particulars are given in the complaint about
his role, because ordinarily the basic averment would be
sufficient to send him to trial and it could be argued that
his further role could be brought out in the trial. Quashing
of a complaint is a serious matter. Complaint cannot be
quashed for the asking. For quashing of a complaint, it
must be shown that no offence is made out at all against
the Director or Partner."
12. In view of above discussion as well as settled
position of law and after considering the facts as alleged in
the complaint filed under Section 138 of the NI Act and
considering that no reply to notice under Section 138 of the
NI Act was given by the petitioner and circumstances of the
present case and considering the disputed question involved
in the matters which are required to be tested by a proper
trial of the matters, I am of the opinion that this is not a
fit case to exercise the inherent powers under Section 528 of
the BNSS and quash the impugned complaints. Let the trial
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Court decide all the contentions raised by the parties after
giving proper opportunity to the parties in the proceedings of
trial of respective criminal cases in accordance with law.
13. Resultantly, all these petitions are dismissed.
Notice/Rule is discharged. Interim relief, if any, stands
vacated.
(SANDEEP N. BHATT,J)
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