Ketanbhai Nanjibhai Gamdha vs State Of Gujarat
2025 Latest Caselaw 6862 Guj

Gujarat High Court

Ketanbhai Nanjibhai Gamdha vs State Of Gujarat on 23 September, 2025

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                           R/SCR.A/4117/2021                                 ORDER DATED: 23/09/2025

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                                   IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                         R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 4117 of 2021

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                                                KETANBHAI NANJIBHAI GAMDHA
                                                           Versus
                                                  STATE OF GUJARAT & ANR.
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                      Appearance:
                      RITESH D PATADIA(6460) for the Applicant(s) No. 1
                      MR HITESH V PATEL(6090) for the Respondent(s) No. 2
                      MR. ROHAN RAVAL ADDL. PUBLIC PROSECUTOR for the Respondent(s)
                      No. 1
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                        CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

                                                        Date : 23/09/2025

                                                         ORAL ORDER

The present petition has been filed claiming following reliefs :

A) This Hon'ble Court may be pleased issue an appropriate writ, order or direction to quash and set aside the impugned complaint Annexure-A and subsequent proceedings initiated in Criminal Case No. 468 of 2017 pending in at the court of the Ld. the Chief Judicial Sangani Magistrate, Kotada-

B) That this Hon'ble Court may be LO stay the pleased further proceedings of Criminal Case No. 468 of 2017 pending in the court the Ld. the Chief Judicial of Magistrate, Kotada-Sangani till final disposal of this petition;

C) That this Hon'ble Court may be pleased to pass

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such other and further reliefs as the nature and circumstances of the case may require."

2. The sum and substance of the petition is that the petitioner is not the signatory of the disputed cheque and is not a Director involved in the day to day affairs of Ishwar Ginning Pvt.Ltd.

2.1 However, in a group of matters led by the Coordinate Bench in Criminal Misc. Application No. 975 of 2019 addressed the issue between the same parties. Relevant paras 8,9, 10 and 11 observed as under :

"8. Now, if the facts of the present case are perused, the averments made the applications and the submissions made by learned advocate for the applicant that the applicant was not aware of the transaction between the complainant and the accused-firm that the applicant was not a partner/director of the company M/s Ishwar Ginning Private Ltd. who has issued the cheques, that the cheques are issued from the account maintained by the firm ie. M/s Ishwar Ginning Private Ltd. Of which the applicant is not a partner/director, that the applicant is roped in to pressurize him for recovering the amount of the cheques issued by one of the other accused who is now deceased etc. are all disputed questions of fact, which need to be proved in a full fledged trial. It is further transpires that such contentions are taken for the first time in these applications which ought to have been taken at the time of giving reply to the notice itself. However, no reply to the legal notice is given, as is fairly stated by learned advocate Mr Patadia appearing for the

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applicant in some of the applications. This Court cannot conduct mani trial or roving inquiry at the stage of exercising the powers under Section 482 of of the Code and therefore, this Court cannot exercise the powers under Section 482 of Code at this initial stage.

9. At this stage, it is also fruitful to refer to the judgment rendered by the Honble 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 and 46, which read as under

43 in the case on hand, we find clear and specific averments not only in the complain but siso 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 with the firm or she was not incharge or responsible for day-to-day affairs of the firm cannot be on the basis of mere bald assertion in this regant. 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

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Section 141 of the Ni Act

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 of 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 with the issuance of the cheque, he must in order to persuade the High Court to quash the process either fumish some sterling Incontrovertible material or acceptable circumstances to substantiate his contention. He must make out a case that 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".

10 It is also fruitful to refer to the judgment in the case of S.Krishnamoorthy V/s Chellammal reported in (2015)4 SCC 559, wherein the Honble Apex Court has held in paragraphs nos 5.7 and 8 of which read as under: 5 The above defence of the respondent (accused) before the High Court, in the petition filed under Section 482 of the Code is nothing but absolutely factual in nature, which is neither admitted by the complainant, nor apparent on the face of the record. Such type of disputed

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factual defences could have been appreciated only by the trial court, after the parties led their evidence In our opinion, the High Court committed grave error of law in examining the allegations and counter allegations which are disputed and factual in nature in a proceeding under Section 482 of the Code

7. In view of the above position of law, we have no option but to set aside the order passed by the High Court as it has entered into highly disputed questions of fact and concluded that the material before it was sufficient to cause reasonable suspicion in the case of the complainant. That is not the ground on which powers under Section 482 of the Code can be exercised by the High Court

8. Therefore, the appeal is allowed. The impugned order dated 5.8 2009 passed by the High Court of Judicature at Madras in Criminal OP No. 7989 of 2009 is hereby set aside The Criminal complaint (CC No. 120 of 2007) periding before the Judicial Magistrate, Dharapuram, shall stand revived The trial court shall proceed in accordance with law

11. 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 FIR 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 482 of the Code and quash the impugned complaints Let the trial Court decide all the contentions raised by the parties after giving proper

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opportunities to the parties in the proceedings of trial of respective criminal cases in accordance with law."

3. The aforesaid reason also pari passu applies to the present case. There is no reason to take different view by this Court.

4. In view of above the present petition stands dismissed. Rule/Notice is discharged. Interim relief if any stands vacated.

(J. C. DOSHI,J) MARY VADAKKAN