Gujarat High Court
Subhadralben Dilipbhai Patel D/O. ... vs State Of Gujarat on 6 May, 2025
NEUTRAL CITATION
R/CR.MA/11169/2017 ORDER DATED: 06/05/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 11169 of 2017
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SUBHADRALBEN DILIPBHAI PATEL D/O. KESHAVLAL PATEL & ANR.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR.DIPAK B PATEL(3744) for the Applicant(s) No. 1,2
MR BN LIMBACHIA(3454) for the Respondent(s) No. 2
MR SOHAM JOSHI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 06/05/2025
ORAL ORDER
1. Permission to amend title as well as the name
of petitioner no.1 is granted. Rectification to
be carried out forthwith.
2. By way of this petition under Section 482 of
the Code of Criminal Procedure, 1973, the
petitioners have prayed to quash and set aside
the complaint bearing Criminal Case No.1067 of
2015 (Old Criminal Case No.1601 of 2013) filed by
the respondent no.2 - Complainant for the offence
punishable under Section 138 of the Negotiable
Instruments Act, 1881 before the Court of the
learned Additional Chief Metropolitan Magistrate,
N.I. Act Court No.38, Ahmedabad.
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3. The brief facts of the case are as under :-
The accused no.1 created good relations with
the complainant and thereafter, he obtained money
from the complainant with the help of the present
petitioners and for repayment of such amount, the
accused persons gave 10 cheques to the
complainant. The complainant deposited the said
cheques in his bank account on 16.07.2013, which
came to be dishonored with an endorsement of
'Account Closed'. Thereafter, the complainant
issued legal notice to the accused persons, which
was replied by the present petitioners on
31.08.2013. Thereafter, the complainant filed the
complaint before the Court of the learned
Additional Chief Metropolitan Magistrate, N.I.
Act Court No.38, Ahmedabad with the false and
fabricated story.
4. Heard the learned advocates for the
respective parties.
5. Mr.D.B.Patel, learned advocate for the
petitioners has submitted that the learned trial
Court has erred in issuing the process for the
offence under Section 138 of the Negotiable
Instrument Act, 1881. He has further submitted
that though the petitioners are the joint holders
of the account maintained by the accused Maulik
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Kanubhai Patel, who is the drawer of the cheques,
the petitioners have not signed the cheques in
question. Therefore, he has submitted that the
present petitioners may not be arraigned as the
accused persons in the criminal case filed under
Section 138 of the Negotiable Instrument
Act,1881. He referred to the judgment of this
Court passed in the case of Bhavnaben
Jitendrabhai Prajapati Vs. Chintan A.Pancholi &
Arn. being Criminal Misc.Application No.15966 of
2021 and submitted that the issue is squarely
covered by the said order passed by this Court.
He has also referred and relied upon the judgment
of the Hon'ble Apex Court in the case of Aparna
A.Shah Vs. Sheth Developers Private Limited
(2013) 8 SCC 71. Therefore, he submits to allow
this petition and to quash the criminal case
filed against the present petitioners under the
Negotiable Instrument Act, 1981.
6. Per-contra, Mr.B.N.Limbachiya, learned
advocate for the respondent no.2 has submitted
that since the cheques have been issued from the
account jointly held by the petitioners, the
petitioners can also be treated as the drawers of
the cheques and therefore, the present
petitioners can raised the above contentions
during the trial before the learned Metropolitan
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Magistrate Court. Therefore, he has submitted to
dismiss the present petition.
7. Mr.Soham Joshi, learned APP for the
respondent - State has submitted that as the
dispute is between the private parties, the
necessary order may be passed.
8. I have also gone through the records of the
case. What could be noticed that the
complainant has filed the Criminal Case No.1067
of 2015 (Old Criminal Case No.1601 of 2013)
before the Court of the Metropolitan Magistrate,
Ahmedabad under Section 138 of the Negotiable
Instrument Act against three accused persons
namely - Mr.Maulik Kanubhai Patel,
Mrs.Subhadraben Dilipbhai Patel and Mrs.Keyaben
Maulikbhai Patel, for dishonouring of as many as
10 cheques (details of which have been stated in
para 6 of the complaint) on the ground that the
commercial transaction was entered into between
the parties and therefore, for the payment of
commercial transaction, Mr.Maulik Kanubhai Patel
has given the cheques in question, which returned
as unpaid. Learned trial Court issued process
against all three accused persons perhaps without
noticing that the cheques in question were drawn
by deceased Mr.Maulik Kanubhai Patel by signing
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the same. Two other accused persons, who are the
joint holders cannot be held to be drawers of the
cheques and therefore, there cannot be accusation
against them. Notable, plain reading of complaint
also does not disclose any material allegations
against petitioners. This Court has, in the case
of Bhavnaben Jitendrabhai Prajapati (supra),
having referred and relied upon the judgment in
the case of Aparna A.Shah Vs. Sheth Developers
Private Limited (2013) 8 SCC 71, in para 6 and 7
held as under :-
"6. I have heard learned advocates for the
both sides and also perused the records. A
perusal of the complaint indicates that
criminal cases under the N.I. Act have been
filed against Jitendrabhai Variya and the
present petitioner - Bhavnaben Prajapati for
returning of cheque Nos.000014 and 000015 of
Rs.15 Lakhs each on the ground of
'insufficient funds'. Learned JMFC issued
process under Section 138 of the N.I. Act
against the accused. The questioned cheques
are on record at page-30 which indicates that
these cheques are issued from joint account
of the both the accused and signed by accused
No.1 - Jitendrabhai Variya. Accused No.2 -
present petitioner has not signed the
cheques. The principle of vicarious liability
cannot be extended to the present petitioner
on the ground that she is joint account
holder with accused No.1.
7. The Hon'ble Apex Court in case of Aparna
A. Shah (supra), held that only the drawer of
the cheque can be prosecuted and the
petitioner since is not the drawer of the
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cheque cannot be prosecuted. Relevant para of
the said judgment are as under :
"22) In the light of the above discussion,
we hold that under Section 138 of the Act,
it is only the drawer of the cheque who can
be prosecuted. In the case on hand,
admittedly, the appellant is not a drawer
of the cheque and she has not signed the
same. A copy of the cheque was brought to
our notice, though it contains name of the
appellant and her husband, the fact remains
that her husband alone put his signature.
In addition to the same, a bare reading of
the complaint as also the affidavit of
examination-in- chief of the complainant
and a bare look at the cheque would show
that the appellant has not signed the
cheque.
23) We also hold that under Section 138 of
the N.I. Act, in case of issuance of cheque
from joint accounts, a joint account holder
cannot be prosecuted unless the cheque has
been signed by each and every person who is
a joint account holder. The said principle
is an exception to Section 141 of the N.I.
Act which would have no application in the
case on hand. The proceedings filed under
Section 138 cannot be used as an arm
twisting tactics to recover the amount
allegedly due from the appellant. It cannot
be said that the complainant has no remedy
against the appellant but certainly not
under Section 138. The culpability attached
to dishonour of a cheque can, in no case
"except in case of Section 141 of the N.I.
Act" be extended to those on whose behalf
the cheque is issued. This Court reiterates
that it is only the drawer of the cheque
who can be made an accused in any
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proceeding under Section 138 of the Act.
Even the High Court has specifically
recorded the stand of the appellant that
she was not the signatory of the cheque but
rejected the contention that the amount was
not due and payable by her solely on the
ground that the trial is in progress. It is
to be noted that only after issuance of
process, a person can approach the High
Court seeking quashing of the same on
various grounds available to him.
Accordingly, the High Court was clearly
wrong in holding that the prayer of the
appellant cannot even be considered.
Further, the High Court itself has directed
the Magistrate to carry out the process of
admission/denial of documents. In such
circumstances, it cannot be concluded that
the trial is in advanced stage."
9. Applying the ration laid down hereinabove,
since the petitioners have not signed the cheques
in question and the petitioners are not the
drawers of the cheques, they cannot be prosecuted
on the ground that they are holding the joint
account with the accused no.1.
10. For the foregoing reasons, the present
petition is allowed. The Criminal Case No.1067 of
2015 (Old Criminal Case No.1601 of 2013) filed by
the respondent no.2 - Complainant for the offence
punishable under Section 138 of the Negotiable
Instruments Act, 1981 before the Court of the
learned Additional Chief Metropolitan Magistrate,
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N.I. Act Court No.38, Ahmedabad as well as all
consequential proceedings initiated in pursuance
therefore are hereby quashed and set aside qua
the present petitioners namely - Mrs.Subhadraben
Dilipbhai Patel and Mrs.Keyaben Maulikbhai Patel.
The trial against other accused shall be
proceeded with in accordance with the law without
being influenced by this order. Rule is made
absolute to the aforesaid extent. Direct service
is permitted.
(J. C. DOSHI,J)
MOHMMEDSHAHID
