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2024 DIGILAW 94 (GUJ)

Patel Somabhai Vithalbhai v. State Of Gujarat

2024-01-11

SANDEEP N.BHATT

body2024
ORDER : 1. This application is filed under Section 482 of the Code of Criminal Procedure, 1973 (‘the Code’ for short) for the following reliefs: “18(A) YOUR LORDSHIPS may be pleased to admit and allow this petition; (B) YOUR LORDSHIPS may be pleased to quash and set aside the impugned complaint being criminal case No.67789/2017 pending before the learned Additional Chief Metropolitan Magistrate, Negotiable Instruments Act, Special Court No.28, Ahmedabad, qua the present applicant; (C) Pending hearing and final disposal of the application, be pleased to stay the operation, implementation and execution of the impugned complaint being criminal case No.67789/2017 pending before the learned Additional Chief Metropolitan Magistrate, Negotiable Instrument Act, Special Court No.28, Ahmedabad, qua the present applicant. (D) xxxxx” 2. It averred in the application that the impugned complaint is filed against the applicant and his son, who are accused nos.1 and 2 in the complaint respectively, alleging that the complainant had business relations with the accused; as the accused needed some money to develop their business, they had taken advance/loan from the complainant of Rs.11,50,000/- and for the said purpose, one promissory note was executed by both the accused in favour of the complainant; as the complainant was inquiring about the money, the accused gave three cheques in favour of the complainant; they were deposited but they returned dishonoured; therefore the legal notice was issued but as no reply was given, the complainant filed the impugned complaint under Sections 138 and 142 of the NI Act. 3. Heard learned advocates for the parties. 4. The main contention raised by learned advocate for the applicant is that the cheque which is signed by the applicant was deposited by the complainant on 8.1.2016 which was dishonoured on 11.1.2016. The legal notice for the same is issued on 12.6.2017 i.e. after a period of more than one year from the date of dishonour of the cheque. He submitted that it is a settled legal position that the legal notice must be sent by the payee to the drawer within 30 days of the receipt of the information from the bank; therefore, the complaint filed against the applicant is not maintainable. 5. Learned advocate for the applicant further submitted that the allegations of another two cheques are not qua the applicant but they are against the son of the applicant who is accused no.2 in the complaint. 6. 5. Learned advocate for the applicant further submitted that the allegations of another two cheques are not qua the applicant but they are against the son of the applicant who is accused no.2 in the complaint. 6. He, therefore, submitted that this application is required to be allowed only on this ground and therefore prays to allow this application and quash the impugned complaint qua the applicant. 7. Per contra, learned APP for respondent no.1 and learned advocate for respondent no.2 have objected this application 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. They submitted that the applicant has not replied to the legal notice issued by the complainant before filing of the complaint and therefore this application is required to be dismissed on this ground alone. 8. I have heard learned advocates for the parties and also perused the material produced on record. 9. At the outset, the provisions of Sections 138 and 142 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.” 142. Cognizance of offences.— [(1)] Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),— (a) no court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque; (b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to section 138: 2 [Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period;] (c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under section 138.]. [(2) The offence under section 138 shall be inquired into and tried only by a court within whose local jurisdiction,— (a) if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated; or (b) if the cheque is presented for payment by the payee or holder in due course, otherwise through an account, the branch of the drawee bank where the drawer maintains the account, is situated. Explanation.—For the purposes of clause (a), where a cheque is delivered for collection at any branch of the bank of the payee or holder in due course, then, the cheque shall be deemed to have been delivered to the branch of the bank in which the payee or holder in due course, as the case may be, maintains the account.] 10. From the above provisions, more particularly, proviso (b) to Section 138 and proviso (b) to Section 142 of the NI Act, it is clear that the complaint has to be made within thirty days of receipt of information from the bank regarding the dishonour of the cheques. In this case, admittedly, the complainant has filed the complaint after one and half year of the dishonour of the cheque, which is not maintainable in the eye of law. Therefore, this Court is not entering into further merits of the matter as the complaint is required to be quashed only on this primary ground. 11. It is also relevant to refer to the judgment of the Hon’ble Apex Court in the case of Inder Mohan Goswami and Another versus State of Uttaranchal reported in (2007) 12 SCC 1 , more particularly para : 23 & 24 thereof, which read as under : “23. This Court in a number of cases has laid down the scope and ambit of courts' powers under Sec. 482 CrPC. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under Sec. 482 CrPC can be exercised: [(i) to give effect to an order under the Code;] [(ii) to prevent abuse of the process of court, and] [(iii) to otherwise secure the ends of justice.] 24. Inherent powers under Sec. 482 CrPC though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself'. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the statute. Discussion of decided cases.” 12. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the statute. Discussion of decided cases.” 12. In view of above settled position of law and after considering the facts as alleged in the complaint and circumstances of the present case, it transpires that continuation of further proceedings pursuant to the said complaint will cause greater hardships to the applicant and no fruitful purpose would be served if such further proceedings are allowed to be continued. The Court must ensure that criminal prosecution is not used as instrument of harassment or for seeking private vendetta or with ulterior motive to pressurise accused or to settle the score. 13. Resultantly, this application is allowed. The criminal case No.67789 of 2017 pending before the learned Additional Chief Metropolitan Magistrate, Negotiable Instruments Act, Special Court No.28, Ahmedabad, is hereby quashed and set aside qua the present applicant. It is clarified that the trial court shall proceed against the original accused no.2 in accordance with law and conclude the same, as expeditiously as possible. Direct service is permitted.