Gujarat High Court
Arifbhai Hajihusen Panja vs State Of Gujarat on 7 January, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 2555 of 2021
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ARIFBHAI HAJIHUSEN PANJA
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR ANKUR Y OZA(2821) for the Applicant(s) No. 1
PRASHANT V CHAVDA(8510) for the Respondent(s) No. 2
MR SOAHAM JOSHI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 07/01/2025
ORAL ORDER
1. By way of present application under Section 482 of the
Criminal Procedure Code, the applicant seeks to invoke
extraordinary jurisdiction of this Hon'ble Court to quash and
set aside Criminal Complaint No.888 of 2019 pending in the
court of learned Additional Judicial Magistrate, Veraval.
2. The case of the complainant can be summarized as
under:
2.1. The complainant and the accused both are residing at
the same village and indulging the business of selling the
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fishes and since last more than four years, they were were in
contact with each other and that is how they came close to
each other and ultimately on 18/04/2019 as the accused was
in dire need of the money therefore he has demanded
Rs.3,00,000/- from the complainant and the same amount was
given to the accused by the complainant and at that time the
accused has handed over one cheque of Union of India
bearing cheque no.019669 and given an assurance to the
complainant that as and when the said cheque would be
honoured before the bank concerned, the said cheque will be
honoured. The complainant has deposited the said cheque
and it came with the endorsement of 'fund insufficient' and
therefore, a notice has been issued by the complainant which
was duly served. Despite service of notice, the accused has
not paid the said amount. Therefore, the complainant has
filed complaint before the competent court on 13/08/2019.
After recording verification of the complainant, court
concerned thought it fit that prima facie offence is made out
against the accused and therefore, passed order under
Section 204 of the Criminal Procedure Code to issue process
against the accused person. The summons issued by the
Hon'ble Court had already been served to the applicant and
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immediately the applicant has filed present application
challenging the same.
3. Mr. Ankur Oza, learned advocate appearing for the
applicant accused has submitted that in fact it is settled
preposition of law and well within the knowledge of one and
all that Negotiable Instruments Act, 1881 (for short 'the NI
Act') is based upon the technical issues and before institution
of the complaint, certain basic and essential parameters of the
provisions of the act are required to be fulfilled. The first and
foremost requirement is that show cause notice is to be issued
to the accused by demanding amount mentioned in the
cheque after receiving the memo from the bank with a specific
demand that amount mentioned in the body of the cheque is
to be paid within a period of fifteen days after receiving the
copy of the notice and if he fails to adhere the dictum
mentioned in the notice, in that event the complainant would
be constrained to institute complaint against him.
4. Mr. Ankur Oza, learned advocate has read the Section
138 of the NI Act and submitted that it is the condition
precedent to fulfill the basic and essential requirement of the
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provisions of the Section 138(b) of the NI Act before
institution of the complaint. Admittedly as per the case of the
complainant, the said cheque had been dishonoured on
10/07/2019 and notice issued by the advocate of the
complainant on 30/07/2019 which was duly served to the
applicant accused on 31/07/2019. The copy of the complaint
as well as notice issued by the learned advocate of the
complainant and other documents are appended herewith
along with the memo of the application. He has referred
those documents and submitted that in the operative part of
the notice a specific demand was being made by the learned
advocate for the complainant that Rs.3,00,000/- requires to be
paid to his client within a period of eight days and receipt to
that effect is to be obtained from his client and if he fails to
fulfill the said requirement, in that event, the complainant
would be constrained to register complaint against him.
5. Mr. Ankur Oza, learned advocate has submitted that in
fact there is a fundamental flow in the notice itself. It is the
specific condition en-grafted in the body of the statute itself
that 15 days time is required to be given to the accused to
repay the amount more particularly the provisions of Section
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138 of the NI Act that the demand notice is to be made to the
accused with a specific direction to repay the said amount
within a period of fifteen days. Herein this case on hand,
instead of fifteen days, eight days time is mentioned in the
body of the notice which clearly goes on to show that the
basis, essential and requisite requirement to fulfill the
provision of the law is at all not made. The averment made in
the notice itself shows and suggests that fundamental flows
have been found in the foundation of the structure of the
notice itself and language employed in the notice could not be
in consonance with the statutory provision. Therefore, the
complaint itself is not maintainable.
6. Mr. Ankur Oza, learned advocate has further submitted
that in fact the complainant has instituted the complaint on
13/08/2019 whereas notice issued by the complainant had
been served to the accused on 31/07/2018. Therefore, as per
the provisions of the NI Act, at least, for minimum period of
fifteen days, the complaint has to wait for the compliance of
the issuance of notice and before that if the complaint is to be
instituted, in that event, it would certainly fall under the
category of premature complaint and upon the said complaint
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the Hon'ble court could not have to take cognizance.
Admittedly there was fundamental flow in the issuance of the
notice and the complaint itself is premature, in that event, at
the time of recording the verification of the complaint and
taking cognizance of the fact, the court concerned would have
to verify whether the complaint is premature and/or filed
within time framed schedule and after jumping to the
particular conclusion that after fulfilling of the necessary and
requisite parameters of the provisions of the NI Act complaint
had been filed by the complainant in that event order of the
process could have been issued.
7. Mr. Ankur Oza, learned advocate has also submitted that
if the complaint as well as other documents annexed along
with the body of the complaint are read as it is in its entirety,
in that event, no offence could be said to have been made out
against the accused person and if the complainant is
permitted to continue with the proceedings, in that event, it
would amount to be gross abuse of process of law and
ultimately leads to miscarriage of justice. Therefore, the
prosecution instituted against the applicant is required to be
quashed and set aside.
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8. Mr. Oza, learned advocate has put reliance upon case
laws referred in the case of Rajeshbhai Muljibhai Patel vs.
State of Gujarat reported in 2020 (0) AIJEL-SC 65742
and submitted that as per the principles of law laid down by
the Apex Court in the above stated case, the case of the
applicant is squarely fall in those categories and hence the
prosecution instituted therefore, is required to be quashed
and set aside. He has also relied upon the decision in the case
of Yogendra Pratapsingh vs. Savitri Pandey reported in
2014(10) SCC 713 and submitted that in the said decision, it
was held that service of notice in terms of Section 138 proviso
(b) of the NI Act is part of cause of action for lodging the
complaint and communication to the accused about the fact of
dishonouring of the cheque and calling upon to pay the
amount within 15 days is imperative in character.
9. Mr. Prashant V. Chavda, learned advocate for the
respondent complainant has made a statement that he has
lost his file in the office and could not be able to make
submissions and has made a statement before this Court that
in absence of original papers, he would not like to make any
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submissions before this Court and appropriate order may be
passed after considering the material available on record.
The court has already extended support to him to go through
the file of the applicant and/or learned APP and make
submission on merit.
10. Mr.Soaham Joshi, learned APP appearing for the
respondent-State has submitted that essentially there is a
dispute between the private parties and private complaint has
been registered by the complainant but at the time of taking
cognizance upon the fact, the learned Judge has verified all
the materials and therefore it can safely be said that there are
no error of fact on law could be said to have been made by the
court concerned at the time of taking cognizance upon the
facts of matter and at this time of passing of order of issuance
of process. Therefore, appropriate order may be passed.
11. Before dwelling into the issue involved in this matter, I
would like to bring certain factual aspects on record so far as
conduct of Mr.Chavda, learned advocate who appears on
behalf of the respondent no.2 original complainant. On
24/10/2024, the co-ordinate bench of this Court has passed
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following order.
"The record-sheet suggests that learned advocate
Mr.Prashant Chavda for respondent No.2 is consistently
not appearing in the matter. However, time and again,
the accommodation appears to have been granted in the
interest of justice.
Today, when the matter was called out, as usual,
learned advocate Mr.Prashant Chavda was not present.
Keeping in mind the interest of the litigant, as a
last chance, the matter is adjourned to 29.10.2024.
It is, however, clarified that if, on that day, no one
appears in the matter, then the matter shall be decided
on the basis of the record available with the Court.
Let the copy of this order be served upon the
respondent No.2 through the jurisdictional police
station."
11.1. Thereafter the matter was listed on 19/11/2024 and on
that day once again the co-ordinate bench of this Court
passed following order on 19/11/2024.
"Following order was passed on 24th October, 2024.
"The record-sheet suggests that learned
advocate Mr.Prashant Chavda for respondent No.2
is consistently not appearing in the matter.
However, time and again, the accommodation
appears to have been granted in the interest of
justice.
Today, when the matter was called out, as
usual, learned advocate Mr.Prashant Chavda was
not present.
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Keeping in mind the interest of the litigant, as
a last chance, the matter is adjourned to
29.10.2024.
It is, however, clarified that if, on that day, no
one appears in the matter, then the matter shall be
decided on the basis of the record available with
the Court.
Let the copy of this order be served upon the
respondent No.2 through the jurisdictional police
station."
Despite the aforesaid order, learned advocate
Mr.Chavda for respondent no.2 has filed leave note.
Ordinarily, leave notes are not applicable in
criminal matters. However, keeping in mind the interest
of respondent No.2, the present matter is adjourned.
On the next date, this Court will not wait for
learned advocate Mr.Chavda to render any assistance.
This fact has already been intimated to respondent No.2
vide order dated 24th October, 2024 which was ordered
to be served through the jurisdictional police station.
Thus, this Court expects respondent No.2 to either
secure the presence of his learned advocate Mr.Chavda
or engage any other lawyer for effective representation.
Stand over to 29th November, 2024."
11.2. Despite the above stated two orders have been passed
by the co-ordinate Bench of this Court on two different
occasions, today in the morning when the matter is called out,
somebody has mentioned on behalf of learned advocate
Mr.Chavda that matter may be kept in the second session.
Hence, this matter is posted in the second session.
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11.3. Today in the second session, when matter is called out,
learned advocate Mr.Chavda has come and he has made
aforesaid request and therefore request of learned advocate
Mr. Chavda is not entertained by this Court.
12. Having gone through the record and proceedings as well
as material supplied by the applicant along with the memo of
the application, it is found out from the record that the
applicant is original accused and respondent no.2 is original
complainant. There were some money transactions took place
between the parties and in lieu of that the cheque is handed
over by the applicant herein to the complainant. When the
said cheque has been deposited by the complainant in his
account, the said cheque has been dishonoured and the memo
is given by the bank to the complainant specifically stating
that there is insufficient fund in the account. Therefore a
demand notice had been issued by the complainant through
his advocate on 30/07/2019. The notice issued by the
complainant has been duly served to the accused and said fact
is clearly reflected from the body of the complaint that on the
very next date, the notice has been duly served. Despite
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serving notice, the applicant accused has not paid the said
amount and therefore complaint has been filed by the
complainant.
13. For the purpose of entertaining present application,
certain sequence of events of incident are required to be
considered.
1) Notice issued by the complainant on 30/07/2017 served
to the accused on 31/07/2017 and the complaint was filed on
13/08/2019. Plea of the complainant has been recorded on
the same day. The order of issuance of process has been
passed on 14/08/2019. Now at this stage, I would like to
reproduce provisions of Section 138 of the Negotiable
Instruments Act which reads 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
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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."
2) It is requirement of the statute that if cheque is issued
by the accused account maintained by him for any lawful debt,
in that event, the complainant has to issue show cause notice
for demand of the same amount within a period of fifteen days
and specific request has to be made to the accused that to see
to it/manage to pay the said amount within a period of fifteen
days and if the accused fails to repay the said amount within
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that stipulated period of time, in that event, the complainant
has to register criminal complaint against the accused.
14. At this juncture, I would like to reproduce relevant
paragraphs of the decision in the case of Yogendra
Pratapsingh (supra) which read as under:
29. For about 7 years since the decision was given by this Court in
Narsingh Das Tapadia1, the various High Courts, as indicated above,
continued to take the view that presentation of a complaint under Section
138 of the NI Act before the accrual of the cause of action does not
render it not maintainable if cognizance had been taken by the
Magistrate after expiry of 15 days of the period of notice. In such matters,
no illegality or impropriety found to have been committed by the
Magistrate in taking cognizance upon such complaint. This legal position,
however, was not accepted by a two-Judge Bench decision of this Court in
Sarav Investment & Financial Consultancy2. Dealing with the provision
under Section 138 of the NI Act, this Court held that Section 138
contained a penal provision; it was a special statute. Having regard to the
purport of the said provision as also in view of the fact that it provides for
a severe penalty, the provision warrant a strict construction. This Court
emphasized that clause (c) of the proviso to Section 138 provides that the
holder of the cheque must be given an opportunity to pay the amount
within 15 days of the receipt of the notice. Complaint, thus, can be filed
for commission of an offence by drawee of the cheque only 15 days after
service of the notice. In Sarav Investment & Financial Consultancy2, this
Court, thus, held that service of notice in terms of Section 138 proviso (b)
of the NI Act a part of cause of action for lodging the complaint and
communication to the accused about the fact of dishonouring of the
cheques and calling upon him to pay the amount within 15 days was
imperative in character. It is true that in Sarav Investment & Financial
Consultancy2, there is no reference of the decision of this Court in
Narsingh Das Tapadia1.
30. Sarav Investment & Financial Consultancy2 led to the view being
taken by the High Courts that a complaint under Section 138 of the NI
Act filed before expiry of 15 days of service of notice was premature and
such complaint could not be treated as complaint in the eye of law and
criminal proceedings initiated are liable to be quashed. This is seen from
the view of the Calcutta High Court in Sandip Guha[17] and the judgment
of the Himachal Pradesh High Court in Rattan Chand[18].
31. Section 138 of the NI Act comprises of the main provision which
defines the ingredients of the offence and the punishment that would
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follow in the event of such an offence having been committed. Appended
to this Section is also a proviso which has three clauses, viz., (a), (b) and
(c). The offence under Section 138 is made effective only on fulfillment of
the eventualities contained in clauses (a), (b) and (c) of the proviso. For
completion of an offence under Section 138 of the NI Act not only the
satisfaction of the ingredients of offence set out in the main part of the
provision is necessary but it is also imperative that all the three
eventualities mentioned in clauses (a), (b) and (c) of the proviso are
satisfied. Mere issuance of a cheque and dishonour thereof would not
constitute an offence by itself under Section 138.
32. Section 138 of the NI Act has been analysed by this Court in
Kusum Ingots & Alloys Ltd.[19] wherein this Court said that the following
ingredients are required to be satisfied for making out a case under
Section 138 of the NI Act:
(i) a person must have drawn a cheque on an account maintained
by him in a bank for payment of a certain amount of money to
another person from out of that account for the discharge of any
debt or other liability;
(ii) that 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;
(iii) that cheque is returned by the bank unpaid, either because the
amount of money standing to the credit of the 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
the bank;
(iv) the payee or the holder in due course of the cheque 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 15 days of
the receipt of information by him from the bank regarding the
return of the cheque as unpaid;
(v) the drawer of such cheque fails to make payment of the said
amount of money to the payee or the holder in due course of the
cheque within 15 days of the receipt of the said notice.
33. We are in agreement with the above analysis.
34. In K.R. Indira[20], a two-Judge Bench of this Court observed that the
offence under Section 138 of the NI Act could be completed if all the
above components are satisfied.
35. Insofar as the present reference is concerned, the debate broadly
centers around clause (c) of the proviso to Section 138 of the NI Act. The
requirement of clause (c) of the proviso is that the drawer of the cheque
must have failed to make the payment of the cheque amount to the payee
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within 15 days of the receipt of the notice. Clause (c) of the proviso offers
a total period of 15 days to the drawer from the date of receipt of the
notice to make payment of the cheque amount on its dishonour.
36. Can an offence under Section 138 of the NI Act be said to have been
committed when the period provided in clause (c) of the proviso has not
expired? Section 2(d) of the Code defines 'complaint'. According to this
definition, complaint means any allegation made orally or in writing to a
Magistrate with a view to taking his action against a person who has
committed an offence. Commission of an offence is a sine qua non for
filing a complaint and for taking cognizance of such offence. A bare
reading of the provision contained in clause (c) of the proviso makes it
clear that no complaint can be filed for an offence under Section 138 of
the NI Act unless the period of 15 days has elapsed. Any complaint before
the expiry of 15 days from the date on which the notice has been served
on the drawer/accused is no complaint at all in the eye of law. It is not the
question of prematurity of the complaint where it is filed before expiry of
15 days from the date on which notice has been served on him, it is no
complaint at all under law. As a matter of fact, Section 142 the NI Act,
inter alia, creates a legal bar on the Court from taking cognizance of an
offence under Section 138 except upon a written complaint. Since a
complaint filed under Section 138 of the NI Act before the expiry of 15
days from the date on which the notice has been served on the
drawer/accused is no complaint in the eye of law, obviously, no
cognizance of an offence can be taken on the basis of such complaint.
Merely because at the time of taking cognizance by the Court, the period
of 15 days has expired from the date on which notice has been served on
the drawer/accused, the Court is not clothed with the jurisdiction to take
cognizance of an offence under Section 138 on a complaint filed before
the expiry of 15 days from the date of receipt of notice by the drawer of
the cheque.
37. A complaint filed before expiry of 15 days from the date on which
notice has been served on drawer/accused cannot be said to disclose the
cause of action in terms of clause (c) of the proviso to Section 138 and
upon such complaint which does not disclose the cause of action the
Court is not competent to take cognizance. A conjoint reading of Section
138, which defines as to when and under what circumstances an offence
can be said to have been committed, with Section 142(b) of the NI Act,
that reiterates the position of the point of time when the cause of action
has arisen, leaves no manner of doubt that no offence can be said to have
been committed unless and until the period of 15 days, as prescribed
under clause (c) of the proviso to Section 138, has, in fact, elapsed.
Therefore, a Court is barred in law from taking cognizance of such
complaint. It is not open to the Court to take cognizance of such a
complaint merely because on the date of consideration or taking
cognizance thereof a period of 15 days from the date on which the notice
has been served on the drawer/accused has elapsed. We have no doubt
that all the five essential features of Section 138 of the NI Act, as noted in
the judgment of this Court in Kusum Ingots & Alloys Ltd.19 and which we
have approved, must be satisfied for a complaint to be filed under Section
138. If the period prescribed in clause (c) of the proviso to Section 138
has not expired, there is no commission of an offence nor accrual of cause
of action for filing of complaint under Section 138 of the NI Act.
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38. We, therefore, do not approve the view taken by this Court in
Narsingh Das Tapadia1 and so also the judgments of various High Courts
following Narsingh Das Tapadia1 that if the complaint under Section 138
is filed before expiry of 15 days from the date on which notice has been
served on the drawer/accused the same is premature and if on the date of
taking cognizance a period of 15 days from the date of service of notice
on the drawer/accused has expired, such complaint was legally
maintainable and, hence, the same is overruled.
39. Rather, the view taken by this Court in Sarav Investment & Financial
Consultancy2 wherein this Court held that service of notice in terms of
Section 138 proviso (b) of the NI Act was a part of the cause of action for
lodging the complaint and communication to the accused about the fact of
dishonouring of the cheque and calling upon to pay the amount within 15
days was imperative in character, commends itself to us. As noticed by us
earlier, no complaint can be maintained against the drawer of the cheque
before the expiry of 15 days from the date of receipt of notice because the
drawer/accused cannot be said to have committed any offence until then.
We approve the decision of this Court in Sarav Investment & Financial
Consultancy2 and also the judgments of the High Courts which have
taken the view following this judgment that the complaint under Section
138 of the NI Act filed before the expiry of 15 days of service of notice
could not be treated as a complaint in the eye of law and criminal
proceedings initiated on such complaint are liable to be quashed.
15. Now, if notice issued by the complainant has to be read,
in that event, it would be found that by flouting the basic
norms of the statutory provisions specific demand was being
made to repay the said within eight days therefore prima facie
it is found out that the contents of the notice are not in
consonance with the provision of law and found to be against
the statutory provision and therefore on the strength of the
above stated non fulfillment of the basic and requisite
requirement of the provisions of the statute the complaint of
the complainant would not able to stand on his leg for a
moment and solely on that count the concerned court could
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not have to take cognizance upon the complaint of the
complainant. The observations made by the Hon'ble Apex
Court in the case of Yogendra Pratapsingh (supra) appears
to be applicable in the present case.
16. It is also found out from the record that those set of
documents are very much available on record. Despite the
said fact the court concerned has taken cognizance and
ordered to issue process against the accused. The said view
adopted by the learned Judge is against the provisions of law
and therefore requires to be set aside.
17. The Hon'ble Apex Court has time and again in catena of
cases held that the provisions of NI Act more particularly
Section 138 of the NI Act are based upon technical issues and
before institution of the complaint, basic and essential
requirement of statute are required to be fulfilled and if the
complaint fails to adhere the terms and conditions mentioned
in the statute in true sense and proper perspective, in that
event, the complaint is required to be quashed.
18. Considering the above, I am of the opinion that the
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present application is required to be entertained.
19. Accordingly, present application is allowed and Criminal
Complaint No.888 of 2019 pending in the court of learned
Additional Judicial Magistrate, Veraval is quashed and set
aside. Rule is made absolute to the aforesaid extent.
(DIVYESH A. JOSHI,J)
ILA
