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Gujarat High Court · body

2023 DIGILAW 1072 (GUJ)

Dipikaben Ashishbhai Doshi v. State Of Gujarat

2023-09-06

SANDEEP N.BHATT

body2023
JUDGMENT : 1. All these applications are filed under Section 482 of the Code of Criminal Procedure, 1973 (‘the Code’ for short) for quashing and setting aside the complaints being Criminal Case Nos.33342 of 2013, 33344 of 2013 and 33345 of 2013 respectively, pending before the Additional Chief Judicial Magistrate, Surat 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 applications, at the request of learned advocates for the parties, they are heard together and disposed of by this common oral order. 3. It is stated in the applications that the complaints came to be filed by the complainant in the capacity of power of attorney holder of Geetaben Vijaybhai Patel; that as the accused was in need of money for business purpose and demanded the same from the complainant, the complainant, in the capacity of a fried, lent the amounts for which cheques were issued by the accused; the complainant deposited the said cheques in the bank which were dishonoured on the ground of ‘funds insufficient’. The complainant issued legal notice which was served and reply was given, thereafter the complaints are filed, which are prayed to be quashed by way of these applications. 4. Heard learned advocates for the parties. 4.1 Learned advocate for the applicant Ms.Shah for the applicant submitted that the cheques are not signed by the applicant and it is not her signature; the said signature does not match with the signature of the applicant which is with the records of the bank and therefore the complaint under Section 138 of the NI Act is not maintainable; that it is specifically replied in the reply to notice that it is not her signature; that the applicant does not know the complainant personally and she did not have any financial transactions with the complainant; that the complainant had financial transactions with the cousin brother of the husband of the applicant; that the cheques are misused and they are not given towards discharge of any legal debt or liability. She, therefore, submitted the ingredients of Section 138 of the NI Act are not made out and, therefore, these applications be allowed and the impugned complaints be quashed and set aside qua the applicant. 5. She, therefore, submitted the ingredients of Section 138 of the NI Act are not made out and, therefore, these applications be allowed and the impugned complaints be quashed and set aside qua the applicant. 5. 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. 6. Learned advocate Mr.Jain for respondent no.2- complainant has submitted that the cheques are issued by the applicant and they bear her signature. That the accounts were in her name and later on, the name of her husband was added. Learned advocate Mr.Jain, therefore, submitted that since the matter does not only involve issues of Section 138 of the NI Act but involves an outright financial fraud committed by the applicant, the facts of which are subject matter of trial and this Court should not exercise inherent powers under Section 482 of the Code, which otherwise, should be exercised sparingly. He, therefore, prayed to dismiss these applications. 7. I have considered the rival submissions and perused the material on record. 8. At the outset, the provisions of Sections 138 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. He, therefore, prayed to dismiss these applications. 7. I have considered the rival submissions and perused the material on record. 8. At the outset, the provisions of Sections 138 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 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 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. 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 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.” 9. 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.” 9. The contentions raised by learned advocate for the applicant that the cheques are not signed by the applicant and it is not her signature; the said signature does not match with the signature of the applicant which is with the records of the bank and therefore the complaint under Section 138 of the NI Act is not maintainable; that it is specifically replied in the reply to notice that it is not her signature; that the applicant does not know the complainant personally and she did not have any financial transactions with the complainant; that the complainant had financial transactions with the cousin brother of the husband of the applicant; that the cheques are misused and they are not given towards discharge of any legal debt or liability and the lending of money by the complainant to the applicant itself is disputed, which means they are all disputed question of facts which are required to be decided in the trial Court. All the contentions raised by the applicant can be decided after proper trial. The contentions raised by learned advocates for the parties are more in the form of proving the factual aspects of the matter by leading documentary evidence, which this Court cannot go into at this stage of quashing of the complaint. This Court cannot conduct mini trial or roving inquiry at the stage of exercising the powers under Section 482 of the Code and therefore, this Court cannot exercise the powers under Section 482 of Code at this initial stage. The applicant has failed to produce some impeachable and incontrovertible evidence beyond suspicion or doubt at this stage of quashing of the complaints. All the contentions raised are in the form of defence, which can be considered after appreciating evidence in full fledged trial of the impugned complaints. The applicant has failed to produce some impeachable and incontrovertible evidence beyond suspicion or doubt at this stage of quashing of the complaints. All the contentions raised are in the form of defence, which can be considered after appreciating evidence in full fledged trial of the impugned complaints. The judgment of the Hon’ble Apex Court in the case of Aparna A Shah V/s Sheth Developers Pvt.Ltd. And Ors., reported in (2013)8 SCC 71 relied on by learned advocate for the applicant will not be helpful to the case of the applicant as in the facts of the present case, there are serious disputed questions of facts and applicant has not taken specific contention in the reply to notice under Section 138 of the NI Act and all these aspects are required to be considered in trial. 10. 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 and 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 with the firm or she was not in- 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 unimpeachable 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. 46. 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. 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 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.” 11. 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 Hon’ble 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 factual defences could have been appreciated only by the trial court, after the parties led their evidence. Such type of disputed 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 O.P. No. 7989 of 2009 is hereby set aside. The Criminal complaint (CC No. 120 of 2007) pending before the Judicial Magistrate, Dharapuram, shall stand revived. The trial court shall proceed in accordance with law.” 12. It is fruitful to refer to the case of Riya Bawri Etc. V/s Mark Alexander Davidson, reported in 2023(0) AIJEL-SC 72240, wherein it observed in paragraphs 18, 19 and 20 as under : “18. The specific allegations made against the accused in the complaint, including the respondent no.1, were that they were in-charge of and were responsible for the affairs of the respondent no.3 firm, for conduct of the business affairs of the firm. Thus, they were liable to be proceeded against and punished. The offence has been committed with the consent and connivance of the accused nos. 2 to 4, which included the respondent no.1. 19. The High Court had accepted the argument raised by the respondent no.1 and quashed the summoning order as well as the complaints against him, accepting the plea that he had retired from the partnership firm for which a Retirement Deed was already executed on 01.04.2018. 2 to 4, which included the respondent no.1. 19. The High Court had accepted the argument raised by the respondent no.1 and quashed the summoning order as well as the complaints against him, accepting the plea that he had retired from the partnership firm for which a Retirement Deed was already executed on 01.04.2018. In our opinion, the plea taken by the respondent no.1 seeking quashing of the summoning order and the complaints filed against him was not tenable, for the reason that, it would be a matter of evidence to be proved before the trial Court, as to whether any Retirement Deed was issued and a public notice concerning the same was issued, before the complaints were filed. The fact remains that, a public notice regarding retirement by the respondent no.1 from the firm was issued on 09.02.2022 i.e., much after the complaints had been filed and the summoning order had been issued by the trial Court on 05.02.2020. Even the quashing petitions were filed by the respondent no.1 in October 2021. The public notice was issued few days before the High Court decided the quashing petition on 14.03.2022. It is not the case set up by the respondent no.1 that in the Partnership Deed it is mentioned that he was a sleeping partner in the firm. Under such circumstances, the Retirement Deed dated 01.04.2018 sought to be produced by the respondent no.1 for quashing of the summoning order and the complaints could not be taken on its face value, and treated as clinching evidence to quash the complaints. It would be a matter of evidence to be led before the trial Court. 20. It is well settled that the final judgment of the trial Court will depend on the evidence adduced before it. As there are specific allegations against the respondent no.1 in the complaint and he was admittedly a partner in the partnership firm when the rent deed was executed, he is liable to face prosecution. Powers under Section 482 of the Code can be exercised by the High Court in case when it comes across unimpeachable and incontrovertible evidence to indicate that the partner of the firm did not have any concern with the issuance of cheques. The case in hand is not of that kind.” 13. Powers under Section 482 of the Code can be exercised by the High Court in case when it comes across unimpeachable and incontrovertible evidence to indicate that the partner of the firm did not have any concern with the issuance of cheques. The case in hand is not of that kind.” 13. 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 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 opportunity to the parties in the proceedings of trial of respective Criminal Case Nos.33342 of 2013, 33344 of 2013 and 33345 of 2013 respectively, pending before the Additional Chief Judicial Magistrate, Surat, in accordance with law and as expeditiously as possible, preferably within a period of 8 (eight) months from today, i.e. on or before 30th April, 2024. 14. Resultantly, all these applications are dismissed. Rule is discharged. Interim relief, if any, stands vacated.