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Gujarat High Court · body

2023 DIGILAW 923 (GUJ)

Gauriben Bhimjibhai Sorathiya v. State Of Gujarat

2023-08-03

SANDEEP N.BHATT

body2023
JUDGMENT : 1. Since the issues involved in the present applications are identical in nature, Criminal Misc. Application No.7834 of 2018 is considered as leading matter. 2. The present application is filed for seeking following main reliefs:- “(A) YOUR LORDSHIPS be pleased to quash the impugned complaint being Special Criminal Case No.33686/2017 filed in the Court of Ld. Additional Senior Civil Judge & Chief Judicial Magistrate, Surat for the offences punishable u/s. 138 of N.I. Act, order passed thereon, and all further proceedings in pursuance thereto, in the interest of justice; (B) YOUR LORDSHIPS may be pleased to stay the further proceedings of impugned complaint being Special Criminal Case No.33686/2017 pending in the Court of Ld. Additional Senior Civil Judge & Chief Judicial Magistrate, Surat, pending the admission, hearing and final disposal of this. petition, in the interest of justice;” 3. Brief fact in Criminal Misc. Application No.7834 of 2018 as per the case of the applicant in this application are as such that the applicant is a lady aged 58 years and doing household work. The case of the respondent no.2- complainant is that the complainant is a proprietor of Sahjanand Accounting. It is alleged that the Accused Kadam Valjibhai Baldaniya is the owner of Kadam Construction and he is engaged in the business of construction of residential premises/houses. It is alleged in the complaint that the applicant herein is having House No.173, 3-B which was mortgaged and the gold ornaments of applicant herein were also mortgaged. It is alleged that as the applicant as well as accused no.1 were in need of money, they approached the complainant. It is alleged that the applicant and accused no.1 had taken loan of Rs. 90 Lakhs for business purpose/ personal reasons. It is alleged that the complainant had given this amount of Rs. 90 Lakhs in cash. It is alleged that upon repeated requests and reminders for repayment, finally, the accused no.1 issued two cheques bearing no. 030032 and 030033 both dated 15.6.2017 drawn on Central Bank of India, Gandhidham Branch, Kutch for a sum Rs. 22,50,000/- each, totaling to Rs. 45,00,000/-. It is alleged that upon presentation of the cheques, the same came to be dishonoured with endorsement "ALTERATION REQUIRE DRAWER AUTHENTICATION" on 5.7.2017. 030032 and 030033 both dated 15.6.2017 drawn on Central Bank of India, Gandhidham Branch, Kutch for a sum Rs. 22,50,000/- each, totaling to Rs. 45,00,000/-. It is alleged that upon presentation of the cheques, the same came to be dishonoured with endorsement "ALTERATION REQUIRE DRAWER AUTHENTICATION" on 5.7.2017. It is alleged that the complainant thereafter issued statutory notice u/s. 138 of N.I. Act to the accused no.1 on 10.7.2017 and thereafter filed the impugned complaint. It is the case of the applicant in this applicant that even taking the case of the complainant as it is without admitting the same, it is clear that the applicant has not issued any cheque to the complainant. The applicant has not signed any cheque or given the same to the complainant towards any legally enforceable debt. The applicant is nowhere concerned with the partnership firm/construction company of accused no.1. In fact, the applicant has not taken/ borrowed any amount from the complainant. The entire story qua the applicant is false and fabricated. In pursuance to the filing of the complaint, the Ld. 3rd Additional Senior Civil Judge & Additional Chief Judicial Magistrate, Surat has issued summons in the complaint. It is pertinent to note that though the applicant is not issued any notice u/s. 138 of N.I. Act. In spite of the same, the complainant has joined the applicant as accused in the criminal complaint filed u/s. 138 of N.I. Act. Without appreciating the above material aspect, the Ld. Magistrate has issued summons to the applicant also. The impugned order of summons and the complaint is thus clear abuse of process of law and court. The Ld. Magistrate has passed the impugned order without application of mind. Hence, this application is preferred. 4. Heard learned advocate Mr. Gajendra P. Baghel representing the applicant and Mr. Dhawan Jayswal, learned Additional Public Prosecutor (APP) representing the respondent No.1 – State. 5. Though served with the service of notice, respondent No.2 – complainant has not chosen to appear or contest the case by any counsel. 6.1 Learned advocate Mr. Gajendra P. Baghel, representing the applicant, has submitted that a notice under Section 138 of the Negotiable Instruments Act, 1881, was issued on July 10, 2017, by the counsel representing the complainant. This notice pertained to the impugned Cheque Nos. 6.1 Learned advocate Mr. Gajendra P. Baghel, representing the applicant, has submitted that a notice under Section 138 of the Negotiable Instruments Act, 1881, was issued on July 10, 2017, by the counsel representing the complainant. This notice pertained to the impugned Cheque Nos. 030033030032603993 & 030033030032603994, each amounting to Rs.22,50,000/- in the applications which are the subject matter of the present captioned applications. However, upon examination of the complaint, it is evident that the present applicant, accused No.2, has been impleaded as a party without his name being mentioned in the impugned notice. Consequently, he contends that the fundamental requirement of Section 138 read with Section 139 of the Negotiable Instruments Act, 1881, has not been fulfilled. 6.2 He asserts that according to the scheme of the Negotiable Instruments Act, 1881, it is obligatory for a notice under Section 138 to be issued within a stipulated time frame to the individuals who are liable to pay the amount of the concerned cheque. In the present case, however, no notice under Section 138 has been issued. Consequently, the present applicant has been directly implicated as accused No.2 in the complaint without the issuance of any Section 138 notice. This procedure is impermissible under the law, and the commencement of proceedings under Section 138 by the complainant, based on the absence of such a notice, is legally flawed. He maintains that the filed F.I.R. under Section 138 is untenable due to its absence and faulty service of notice. 6.3 Moreover, he contends that the impugned F.I.R. does not contain specific allegations against the present accused, who is arraigned as accused No.2 in the Section 138 complaint. On this basis alone, he requests the quashing of the proceedings initiated by the complainant. 6.4 He further argues that even upon a bare reading of the impugned complaint, no enforceable debt exists. Therefore, he prays for the allowance of this application by invoking the powers under Section 482 of the Criminal Procedure Code, 1973, in accordance with the precedent set by the Hon'ble Supreme Court in the case of State of Haryana V/s Bhajan Lal, reported in AIR 1992 SC 604 , and its subsequent judgments. 7. In contrast, the learned Additional Public Prosecutor (APP), representing respondent No.1 – the State, contends that the dispute is primarily between two private parties. 7. In contrast, the learned Additional Public Prosecutor (APP), representing respondent No.1 – the State, contends that the dispute is primarily between two private parties. However, it is noteworthy that the complaint has been filed under Section 138 of the Negotiable Instruments Act, addressing a substantial outstanding amount of nearly Rs.90 lakhs in the present two complaints. In light of this, the applicant - accused No.2, must face the trial court proceedings concerning Section 138 of the Negotiable Instruments Act. He urges that all contentions should be raised before the trial court during the trial. Consequently, he submits that this Court should exercise its powers under Section 482 of the Criminal Procedure Code, 1973, which should be exercised very sparingly. 8.1 I have heard the learned advocates representing the respective parties. I have considered the contentions raised at the bar by the respective parties. I have heard other documents annexed with the memo of present application. 8.2 Upon examination, it has come to light that the trial court did not examine the supplementary materials attached to the complaint filed under Section 138 at the time of verification. Without conducting a thorough review of the essential documents supporting the impugned F.I.R. registered under Section 138 of the Negotiable Instruments Act, it appears that the issuance of the process was based solely on the fact that the complainant had declared the dishonoured cheque amounts in their income tax return. The trial court proceeded on this premise and initiated the process accordingly. 8.3 It is relevant to refer the provisions of Sections 202, 203 and 204 of the Criminal Procedure Code, 1973, as under: “Section 202 in The Code Of Criminal Procedure, 1973 202. The trial court proceeded on this premise and initiated the process accordingly. 8.3 It is relevant to refer the provisions of Sections 202, 203 and 204 of the Criminal Procedure Code, 1973, as under: “Section 202 in The Code Of Criminal Procedure, 1973 202. Postponement of issue of process:- (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding: Provided that no such direction for investigation shall be made,-- (a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or (b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200. (2) In an inquiry under sub- section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath: Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath. (3) If an investigation under sub- section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer- in- charge of a police station except the power to arrest without warrant. Section 203 in The Code Of Criminal Procedure, 1973:- 203. Dismissal of complaint. If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing, CHAP COMMENCEMENT OF PROCEEDINGS BEFORE MAGISTRATES CHAPTER XVI COMMENCEMENT OF PROCEEDINGS BEFORE MAGISTRATES Section 204 in The Code Of Criminal Procedure, 1973:- 204. Issue of process. Issue of process. (1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be- (a) a summons- case, he shall issue his summons for the attendance of the accused, or (b) a warrant- case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction. (2) No summons or warrant shall be issued against the accused under sub- section (1) until a list of the prosecution witnesses has been filed. (3) In a proceeding instituted upon a complaint made in writing every summons or warrant issued under sub- section (1) shall be accompanied by a copy of such complaint. (4) When by any law for the time being in force any process- fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint. (5) Nothing in this section shall be deemed to affect the provisions of section 87.” 8.4 Taking into account the foregoing, I am of the view that the Court did not adequately authenticate the requisite documents presented alongside the records prior to authorizing the initiation of the process. 8.5 Furthermore, it is relevant to refer provisions of Sections 138 and 139 of the Negotiable Instruments Act, 1881, as under: Section 138 in The Negotiable Instruments Act, 1881:- 138 Dishonour of cheque for insufficiency, etc., of funds in the account. 8.5 Furthermore, it is relevant to refer provisions of Sections 138 and 139 of the Negotiable Instruments Act, 1881, as under: Section 138 in The Negotiable Instruments Act, 1881:- 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 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, 20 [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. Section 139 in The Negotiable Instruments Act, 1881:- 139. Explanation.— For the purposes of this section, “debt or other liability” means a legally enforceable debt or other liability. Section 139 in The Negotiable Instruments Act, 1881:- 139. Presumption in favour of holder.—It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability. 8.6 Additionally, when considering the aforementioned sections of the Negotiable Instruments Act, it becomes evident that a complaint can only be filed subsequent to the service of a notice and after the stipulated waiting period as outlined in the said provision. The statute also mandates the issuance of a notice under Section 138 and designates a specific timeframe for its execution. In light of this, since the notice itself was not issued to the applicant in this case, it cannot be asserted that the complaint, in which the applicant is named as accused No.2, was filed subsequent to proper notice being served. Consequently, this complaint cannot be deemed as filed in accordance with the provisions of the law. In fact, prima facie, such a complaint lacks merit, as it fails to adhere to the necessary requisites under Section 138. 8.7 Therefore, in my view, the complaint filed against the applicant by arraigning accused No.2 is not maintainable under the Section 138 of the Negotiable Instruments Act. 8.8 At this juncture, it is pertinent to reference the judgment of the Hon’ble Apex Court in the case of S.P. Mani and Mohan Dairy versus Dr. Snehalatha Elangovan, reported in 2022 (13) SCALE 543 . In this judgment, the Hon’ble Court extensively examined the scope of Section 138. Particularly, paragraphs 24 to 27 and 47 of the judgment hold relevance, are as under: “24. Evidently, the gist of Section 138 is that the drawer of the cheque shall be deemed to have committed an offence when the cheque drawn by him is returned unpaid on the prescribed grounds. The conditions precedent and the conditions subsequent to constitute the offence are drawing of a cheque on the account maintained by the drawer with a banker, presentation of the cheque within the prescribed period, making of a demand by the payee by giving a notice in writing within the prescribed period and failure of the drawer to pay within the prescribed period. Upon fulfilment of these requirements, the commission of the offence which may be called the offence of ‘dishonour of cheque’ is complete. If the drawer is a company, the offence is primarily committed by the company. By virtue of the provisions of subsection (1) of Section 141, the guilt for the offence and the liability to be prosecuted and punished shall be extended to every person who, at the time the offence was committed, was in charge of and was responsible to the company for the conduct of its business; irrespective of whether such person is a director, manager, secretary or other officer of the company. It would be for such responsible person, in order to be exonerated in terms of the first proviso, to prove that the offence was committed without his knowledge or despite his due diligence. 25. Under the separate provision of subsection (2), if it is proved that the offence was committed with the consent or connivance of or was attributable to the neglect on the part of any director, manager, secretary or other officer of the company, such person would also be deemed to be guilty for that offence. Obviously, the burden of alleging and proving consent, connivance or neglect on the part of any director, etc. would rest upon the complainant. The non obstante clause with which the subsection (2) opens indicate that the deeming provision is distinct and different from the deeming provision in subsection (1) in which the office or designation of the person in charge of and responsible to the company for the conduct of its business is immaterial. 26. While the essential element for implicating a person under subsection (1) is his or her being in charge of and responsible to the company in the conduct of its business at the time of commission of the offence, the emphasis in subsection (2) is upon the holding of an office and consent, connivance or negligence of such officer irrespective of his or her being or not being actually in charge of and responsible to the company in the conduct of its business. Thus, the important and distinguishing feature in subsection (1) is the control of a responsible person over the affairs of the company rather than his holding of an office or his designation, while the liability under subsection (2) arises out of holding an office and consent, connivance or neglect. Thus, the important and distinguishing feature in subsection (1) is the control of a responsible person over the affairs of the company rather than his holding of an office or his designation, while the liability under subsection (2) arises out of holding an office and consent, connivance or neglect. While all the persons covered by subsection (1) and sub section (2) are liable to be proceeded against and also punished upon the proof of their being either in charge of and responsible to the company in the conduct of its business or of their holding of the office and having been guilty of consent, connivance or neglect in the matter of commission of the offence by the company, the person covered by subsection (1) may, by virtue of the first proviso, escape only punishment if he proves that the offence was committed without his knowledge or despite his due diligence. 27. As for the requisite evidence, the burden upon the prosecution would be discharged under subsection (1) when a person is proved to be in charge of and responsible to the company in the conduct of its business and would shift upon the accused to prove that he was ignorant or diligent, if that be his defence; whereas under subsection (2) the prosecution would be required to allege and prove the consent, connivance or neglect and holding of the office by the accused. There is nothing to suggest that the same person cannot be made to face the prosecution either under subsection (1) or subsection (2) or both. A director or manager can be arraigned and proved to be guilty as the person in charge of and responsible to the company as well as the director of the company who, as such, might have consented to, connived at or been negligent in respect of the offence of dishonour of cheque, be logically deduced that a person can be arraigned in a complaint as the accused along with the company if it prima facie appears that he was in charge of and responsible to the company for the conduct of its business, although he may or may not be or may not have continued to be a director or other officer of the company, as mentioned in sub section (2). It would be sufficient if the complaint indicates that such person has been arraigned on the basis of averments which disclose him or her to be the person in charge of and responsible to the company in the conduct of its business at the time the offence was committed. Evidently, a person who signs the cheque or who has the authority to sign the cheque for and on behalf of the company, regardless of his office or capacity, can, prima facie, be assumed to be in charge of and responsible to the company in the conduct of its business. And, where such person is prosecuted, then, if it be his defence that the offence was committed without his or her knowledge or that he or she has exercised all due diligence to prevent the commission of such offence, the burden to prove that would be on him or her and can only be discharged at the stage of evidence. 47. Our final conclusions may be summarised as under: a.) The primary responsibility of the complainant is to make specific averments in the complaint so as to make the accused vicariously liable. For fastening the criminal liability, there is no legal requirement for the complainant to show that the accused partner of the firm was aware about each and every transaction. On the other hand, the first proviso to subsection (1) of Section 141 of the Act clearly lays down that if the accused is able to prove to the satisfaction of the Court that the offence was committed without his/her knowledge or he/she had exercised due diligence to prevent the commission of such offence, he/she will not be liable of punishment. b.) The complainant is supposed to know only generally as to who were in charge of the affairs of the company or firm, as the case may be. The other administrative matters would be within the special knowledge of the company or the firm and those who are in charge of it. In such circumstances, the complainant is expected to allege that the persons named in the complaint are in charge of the affairs of the company/firm. The other administrative matters would be within the special knowledge of the company or the firm and those who are in charge of it. In such circumstances, the complainant is expected to allege that the persons named in the complaint are in charge of the affairs of the company/firm. It is only the Directors of the company or the partners of the firm, as the case may be, who have the special knowledge about the role they had played in the company or the partners in a firm to show before the court that at the relevant point of time they were not in charge of the affairs of the company. Advertence to Sections 138 and Section 141 respectively of the NI Act shows that on the other elements of an offence under Section 138 being satisfied, the burden is on the Board of Directors or the officers in charge of the affairs of the company/partners of a firm to show that they were not liable to be convicted. The existence of any special circumstance that makes them not liable is something that is peculiarly within their knowledge and it is for them to establish at the trial to show that at the relevant time they were not in charge of the affairs of the company or the firm. c.) Needless to say, the final judgement and order would depend on the evidence adduced. Criminal liability is attracted only on those, who at the time of commission of the offence, were in charge of and were responsible for the conduct of the business of the firm. But vicarious criminal liability can be inferred against the partners of a firm when it is specifically averred in the complaint about the status of the partners ‘qua’ the firm. This would make them liable to face the prosecution but it does not lead to automatic conviction. Hence, they are not adversely prejudiced if they are eventually found to be not guilty, as a necessary consequence thereof would be acquittal. This would make them liable to face the prosecution but it does not lead to automatic conviction. Hence, they are not adversely prejudiced if they are eventually found to be not guilty, as a necessary consequence thereof would be acquittal. d.) If any Director 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/she is really not concerned with the issuance of the cheque, he/she must in order to persuade the High Court to quash the process either furnish some sterling incontrovertible material or acceptable circumstances to substantiate his/her contention. He/she must make out a case that making him/her stand the trial would be an abuse of process of Court.” 8.9 It is also pertinent to reference the judgment of the Hon’ble Apex Court in the case of Alka Khandu Avhad versus Amar Syamprasad Mishra, reported in (2021) 4 SCC 675 . Particularly, paragraphs 3, 6 and 7 of the judgment hold relevance, are as under: ‘3. Learned counsel appearing on behalf of the appellant has vehemently submitted that the dishonoured cheque was issued by her husband and not the appellant and even the account in question was not a joint account and that the appellant was neither the signatory to the cheque nor the cheque was drawn from the bank account of the appellant and therefore the appellant cannot be prosecuted for the offence punishable under Section 138 of the NI Act. It is vehemently submitted that the ingredients of Section 138 of the NI Act are not satisfied, and therefore, the High Court ought to have quashed the criminal complaint against the appellant. 3.1 It is further submitted by the learned counsel appearing on behalf of the appellant that, in the facts and circumstances of the case, even Section 141 of the NI Act shall not be applicable as the cheque was issued by a private individual. 6. We have heard learned counsel appearing on behalf of the respective parties at length, considered material on record and also considered the averments and allegations in the complaint. It emerges from the record that the dishonoured cheque was issued by original accused No. 1 – husband of the appellant. It was drawn from the bank account of original accused No. 1. It emerges from the record that the dishonoured cheque was issued by original accused No. 1 – husband of the appellant. It was drawn from the bank account of original accused No. 1. The dishonoured cheque was signed by original accused No. 1. Therefore, the dishonoured cheque was signed by original accused No. 1 and it was drawn on the bank account of original accused No. 1. The appellant herein-original accused No. 2 is neither the signatory to the cheque nor the dishonoured cheque was drawn from her bank account. That the account in question was not a joint account. In the light of the aforesaid facts, it is required to be considered whether the appellant herein – original accused No. 2 can be prosecuted for the offence punishable under Section 138 r/w Section 141 of the NI Act? 7. On a fair reading of Section 138 of the NI Act, before a person can be prosecuted, the following conditions are required to be satisfied: i) that the cheque is drawn by a person and on an account maintained by him with a banker; ii) for the 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; and iii) the said cheque 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. Therefore, a person who is the signatory to the cheque and the cheque is drawn by that person on an account maintained by him and the cheque has been issued for the discharge, in whole or in part, of any debt or other liability and the said cheque has been returned by the bank unpaid, such person can be said to have committed an offence. Section 138 of the NI Act does not speak about the joint liability. Even in case of a joint liability, in case of individual persons, a person other than a person who has drawn the cheque on an account maintained by him, cannot be prosecuted for the offence under Section 138 of the NI Act. Section 138 of the NI Act does not speak about the joint liability. Even in case of a joint liability, in case of individual persons, a person other than a person who has drawn the cheque on an account maintained by him, cannot be prosecuted for the offence under Section 138 of the NI Act. A person might have been jointly liable to pay the debt, but if such a person who might have been liable to pay the debt jointly, cannot be prosecuted unless the bank account is jointly maintained and that he was a signatory to the cheque.” 8.10 Further, it will also be fruitful to mention the judgment of the Hon’ble Supreme Court in the case of State of Haryana V/s Bhajan Lal reported in AIR 1992 SC 604 , wherein the Hon’ble Supreme Court has observed thus - “In the backdrop of the interpretation of the various relevant provisions of the Code under Ch.XIV and of the principles of law enunciated by this court in a series of decisions relating to the exercise of the extraordinary power under Art.226 or the inherent powers under sec.482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under sec.156(1) of the Code except under an order of a Magistrate within the purview of sec.155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under sec.156(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” 8.11 Given the aforementioned observations, it is evident that the proceedings initiated against the applicant in accordance with the contested complaint, wherein she is identified as accused No.2, lack a valid foundation and do not adhere to the obligatory prerequisites of Section 138 of the Negotiable Instruments Act. This deficiency arises because the statutory notice, mandated by Section 138, was never issued to the applicant; instead, it was served to a different individual. In essence, no notice was provided to the present applicant. Consequently, the proceedings themselves were commenced on incorrect premises by designating the current petitioner as accused No.2 in the impugned F.I.R. submitted by the complainant. 8.12 Furthermore, upon bare perusal of the impugned F.I.R., it becomes apparent that there is an absence of specific allegations directed against the present applicant. As a result, it cannot be inferred that a prima facie case has been established under Section 138 against the applicant. Even when considering the claims presented in the present application as true, the applicant's contention remains centered around a cash transaction amounting to Rs.90 lakhs. As a result, it cannot be inferred that a prima facie case has been established under Section 138 against the applicant. Even when considering the claims presented in the present application as true, the applicant's contention remains centered around a cash transaction amounting to Rs.90 lakhs. Subsequent to this transaction, cheques were issued not only by the applicant but also by other individuals. Additionally, it is crucial to note that the signatory of the cheque is affiliated with individuals other than the present applicant. 8.13 Taking into account the totality of the facts and circumstances of the present case, and placing emphasis on the pivotal point that the absence of statutory notice served to the present applicant renders any complaint inadmissible under Section 138 of the Negotiable Instruments Act, 1881, it becomes evident that there is no fruitful purpose in continuing with the ongoing proceedings stemming from the respective complaints filed under Section 138 in their respective petitions. 9. The present applications are allowed. 10. In Criminal Misc. Application No.7834 of 2018, the impugned complaint being Special Criminal Case No.33686 of 2017 filed in the Court of Addl. Senior Civil Judge & Chief Judicial Magistrate, Surat for the offences punishable under Section 138 of the Negotiable Instruments Act, 1881 is hereby quashed and set aside. Consequent proceedings pursuant to the impugned complaint are hereby quashed, accordingly. 11. In Criminal Misc. Application No.7806 of 2018, the impugned complaint being Special Criminal Case No.33673 of 2017 filed in the Court of Addl. Senior Civil Judge & Chief Judicial Magistrate, Surat for the offences punishable under Section 138 of the Negotiable Instruments Act, 1881 is hereby quashed and set aside. Consequent proceedings pursuant to the impugned complaint are hereby quashed, accordingly. Rule is made absolute.