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Gujarat High Court · body

2021 DIGILAW 417 (GUJ)

Dipikaben Alpesh Patel v. State of Gujarat

2021-06-10

GITA GOPI

body2021
JUDGMENT : 1. Rule. Ms. Monali Bhatt, learned APP and Mr. Johnsey P.Macwan, learned advocate for the respondent no.2 waives service of notice of Rule on behalf of respective parties. With the consent of the parties, the matter is heard finally today. 2. This petition has been filed under Article 226 of the Constitution of India as well as Section 482 of the Code of Criminal Procedure for quashing and setting aside the complaint being Criminal Case No.825 of 2019 pending before the learned 6th Additional C.J.M., Anand under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the ‘N.I. Act’ for short) and the consequential proceedings, if any, initiated in pursuance thereof . 3. It is contended in the petition that respondent no.2 preferred the complaint contending that the accused of Criminal Case No.825 of 2019 came in his contact through his younger brother, Pankajbhai Poonambhai Patel. The accused developed friendly terms and thereafter as were in need of money asked hand loan from the present respondent no.2 through intervention of his younger brother. The respondent no.2, therefore, gave the accused hand loan of Rs.5,50,000/- and accused promised to return the same within a period of five months and when respondent no.2 demanded back the money, the accused handed him a Cheque of Rs.5,50,000/- dated 24.12.2018 bearing Cheque No.281811, drawn on State Bank of India, Account No.30679619403, Chhani Road Branch, Vadodara, signed by accused no.1, who is husband of the present petitioner. 3.1 It is stated that the said Cheque of 24.12.2018 was deposited by the respondent no.2 in his Corporation Bank, Sudan Branch, Account No.346000101000161, which was dishonoured on 28.12.2018 with endorsement “Today’s Opening Balance Insufficient”. Thereafter, Demand Notice under Section 138 of the N.I. Act was sent through R.P.A.D., which was received by the accused on 12.01.2019. The said legal notice was replied on 29.01.2019, whereby the accused denied the contention raised by the present respondent no.2 in his Demand Notice and stated of taking a loan of Rs.1,00,000/- in the month of November, 2015 for a period of one year at the monthly interest of 5%. The said legal notice was replied on 29.01.2019, whereby the accused denied the contention raised by the present respondent no.2 in his Demand Notice and stated of taking a loan of Rs.1,00,000/- in the month of November, 2015 for a period of one year at the monthly interest of 5%. It is alleged that the present respondent no.2 had asked accused to give Cheques by way of security and against the loan of Rs.1,00,000/-, the accused had paid Rs.1,60,000/- to respondent no.2, but the said Cheques which were given by way of security were not returned and were deposited in the Bank to pressurize the accused. 3.2 It is contended that Criminal Case No.825 of 2019 has been filed in the Court of 6th Additional C.J.M. and Summons were issued to both the accused vide order dated 18.03.2019. The present petitioner has contended that she is not the signatory to the dishonoured Cheque and the said Cheque was issued from the Joint Account maintained by her along with her husband and thus on that ground stated that she cannot be held liable under Section 138 read with Section 141 of the N.I. Act and thus prayed for quashing and setting aside the process issued against her in Criminal Case No.825 of 2019. 4. Heard Mr. P.P. Majmudar, learned advocate for the petitioner, Mr. Johnsey P.Macwan, learned advocate for respondent no.2 and Ms. Monali Bhatt, learned APP for the State. 5. Mr. P.P. Majmudar, learned advocate for the petitioner submitted that no cognizance can be taken by the Court against the present petitioner, as the Cheque does not bear her signature and merely because the petitioner was a Joint Account holder along with her husband, false case has been filed against her. Mr. Majmudar referring to the order passed by the learned 6th Additional C.J.M., Anand below Exhibit-1, submitted that the learned trial Court Judge has not considered the provisions of law and without recording reasons Summons have been ordered to be issued on 05.02.2019 under Section 138 of the N.I. Act for the presence on 18.03.2019. 6. Relying on the case of Harshad Manubhai Lalavaiya Vs. State of Gujarat & Anr., passed by this Court on 04.04.2017 in Criminal Misc. Application (For Quashing & Set Aside FIR/Order) No.19938 of 2016, Mr. 6. Relying on the case of Harshad Manubhai Lalavaiya Vs. State of Gujarat & Anr., passed by this Court on 04.04.2017 in Criminal Misc. Application (For Quashing & Set Aside FIR/Order) No.19938 of 2016, Mr. Majmudar submitted that the petitioner is wife of the coaccused and she is not the signatory to the Cheque and thus no liability can be fasten upon her, thus, prayed for quashing and setting aside the proceedings against the present petitioner. 7. Copy of the legal notice issued under Section 138 dated 08.01.2019 is on record, which was part of the proceedings before the learned 6th Additional C.J.M., Anand and accordingly Cheque No.381811 of Rs.5,50,000/- dated 24.12.2018 was signed by Alpesh Babubhai Patel, who is the husband of the present petitioner. Account No.30679619403 at State Bank of India, Vadodara, is a joint account with the husband and the said impugned cheque is not signed by the present petitioner. 8. In the case of Jugesh Sehgal Vs. Shamsher Singh Gogi, reported in (2009) 14 SCC 683 , the following ingredients to constitute the offence under Section 138 of the N.I. Act, has been laid down. “(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 that account. Shamsher Singh Gogi, reported in (2009) 14 SCC 683 , the following ingredients to constitute the offence under Section 138 of the N.I. Act, has been laid down. “(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 that account. (ii) the cheque should have been issued for the discharge, in whole or in part, of any debt or other liability; (iii) 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; (iv) that cheque is returned by the bank unpaid, either because of 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; (v) 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; (vi) 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. Being cumulative, it is only when all the aforementioned ingredients are satisfied that the person who had drawn the cheque can be deemed to have committed an offence under Section 138 of the Act." 8.1 Referring to the scope and ambit of powers of the High Court under Section 482 of the Code, the Supreme Court in the above referred judgment of Jugesh Sehgal (supra), observed that, the scope and ambit of powers of the High Court under Section 482 of the Code has been enunciated and reiterated by the Apex Court in series of decisions and several circumstances under which the High Court can exercise jurisdiction in quashing proceedings. The powers under Section 482 are very wide, but it should be exercised in appropriate cases, ex debito justitiate to do the real and substantial justice. The powers under Section 482 are very wide, but it should be exercised in appropriate cases, ex debito justitiate to do the real and substantial justice. The inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice. The powers have to be exercised sparingly, with circumspection and in the rarest of rare cases, where the Court is convinced, on the basis of material on record, that allowing the proceedings to continue would be an abuse of the process of the court or that the ends of justice require that the proceedings ought to be quashed. 8.2 In case of State of Haryana V. Bhajan Lal and others, AIR 1992 SC 604 , the Apex Court formulated as many as seven categories of cases, wherein the extraordinary power under Section 482 could be exercised by the High Court to prevent abuse of process of the court. It was clarified that it was not possible to lay down precise and inflexible guidelines or any rigid formula or to give an exhaustive list of circumstances in which such power could be exercised. 9. Section 138 of the N.I. Act reads as under: "138. It was clarified that it was not possible to lay down precise and inflexible guidelines or any rigid formula or to give an exhaustive list of circumstances in which such power could be exercised. 9. Section 138 of the N.I. Act 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 arrangement 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 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". Explanation.- For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability". 9.1 The plain reading of Section 138 makes it clear that it has to be strictly interpreted, as penal provision is made for commission of offence as prescribed under Section 138 of the N.I. Act. It is drawer of the Cheque, who has to be made liable for the payment of amount of money due to the payee or the holder of the Cheque within the statutory limits as provided, after the receipt of the legal notice demanding the cheque money. If the drawer of the Cheque fails to make payment of the said amount of money, then such person shall be deemed to have committed offence. Without prejudice to any of the provisions of the N.I. Act, the penal provision is for the punishment with imprisonment for a term which may extend to two years or with fine which may extend to twice the amount of the Cheque or with both. Criminal prosecution is neither for recovery of money nor for enforcement of any security. Section 138 of the N.I. Act being a penal provision, it entails a conviction and sentence at the end of the criminal proceedings. There is a statutory presumption under Section 139 of the N.I. Act in favour of the holder of the Cheque. A prosecution under Section 138 of the N.I. Act is ultimately to bring the offender to suffer penal consequences. 10. The case of the complainant in Criminal Case No.825 of 2019 does not fall under the provisions of Section 141 of the N.I. Act. It appears that the present petitioner has been joined in criminal proceedings just as being the joint account holder with the husband. As per the facts of the case, the Cheque was issued by accused no.1 in his personal capacity. The wife has no business relationship, nor was having any transaction with the complainant on her personal basis, thus, she cannot be made vicariously liable for the act of the husband. As per the facts of the case, the Cheque was issued by accused no.1 in his personal capacity. The wife has no business relationship, nor was having any transaction with the complainant on her personal basis, thus, she cannot be made vicariously liable for the act of the husband. It appears that the learned trial Court Judge has not considered the averments of the complaint and has not examined the status of the proposed accused prior to order for issuance of summons against the present petitioner, who was joined in the criminal proceedings merely under the status of being wife of the accused no.1 and holding a joint account with the husband. She could have been prosecuted only when the Cheque has been signed by both of them as joint account holder. The learned Judge while determining the question whether any process is to be issued or not, has to be satisfied whether there is sufficient ground for proceeding. The proceedings under Section 138 of the N.I. Act cannot be misused by any of the parties. The culpability is attached with the dishonour of the Cheque and it is only the drawer of the Cheque who can be made accused in any proceedings under Section 138 of the N.I. Act. From the bare reading of Section 138 of the N.I. Act, it transpires that the liability of the drawer of the Cheque, who has issued the Cheque from the joint account maintained by him and his wife, does not specifically bear any implication to make the wife equally liable when the Cheque was drawn by her husband, and therefore, no vicarious liability can be fastened on the holder of a joint account, by a mere fact that the dishonoured cheque was issued by the drawer of such a cheque from the same bank account. The analogy of section 141 of the N.I. Act, which deals with the offences of the company, cannot be stretched to make the joint holder of a bank account vicariously liable to face the prosecution under Section 138 of the N.I. Act. The trial against the present petitioner in Criminal Case No.825 of 2019 would be abuse of process of Court. The trial against the present petitioner in Criminal Case No.825 of 2019 would be abuse of process of Court. Hence, the Court is of the opinion that this is a fit case where the inherent powers of the Court under section 482 of the Cr.P.C. could be exercised in favour of the applicant for securing the ends of justice. 11. In the result, the application is allowed. The Criminal Case No.825 of 2019 pending before the learned 6th Additional C.J.M., Anand under Section 138 of the N.I. Act and the consequential proceedings initiated in pursuance thereof are quashed and set aside qua the present petitioner. Rule is made absolute. 12. It is made clear that the trial Court shall continue the proceedings of Criminal Case No.825 of 2019 qua the accused no.1 – Alpesh Babubhai Patel without being influenced by any of the observations made by this Court in the present order.