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CR.MA/2927/2005 12/ 12 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 2927 of 2005
For
Approval and Signature:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=================================================
BHOLASINGH
JAIPRAKASH CONSTRUCTION LTD. THRO' R.C.SO & 8 - Applicants
Versus
THE
STATE OF GUJARAT & 1 - Respondents
=================================================
Appearance :
MR
BS PATEL for Applicants: 1 - 9.MRS RANJAN B PATEL for Applicants : 1
- 9.
MR. K.P. RAVAL, LD. APP for Respondent : 1,
MR HP
MOTIRAMANI for Respondent : 2,
MR YH MOTIRAMANI for Respondent :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 10/05/2011
ORAL
JUDGMENT
Learned
advocate for the petitioners has stated at the Bar that petitioner
no.3, who happened to be the chairman of petitioner nos. 1 & 2
company has expired on 22/1/2008 and xerox copy of the death
certificate is produced on record. Hence this petition would not
survive qua petitioner no.3, who is named as accused no.2 in the
complaint. This petition is therefore now confined to the rest of
the petitioners, namely petitioner company, who has been named
twice, namely petitioner no.1 and petitioner no.2 and petitioner
nos. 4 to 9.
The
petitioners who have been named as accused in criminal complaint no.
955 of 2002 filed by respondent no.2 alleging commission of offence
under section 138 of Negotiable Instrument Act, 1881 (herein after
referred to as ‘N.I. Act’ for brevity) have approached this Court
under section 482 of Criminal Procedure Code seeking quashment of
the said complaint for the reasons stated in the memo of the
petition.
This
Court (Coram: K.A. Puj, J {as he then was}) vide order dated
14/9/2005 issued rule in this matter which was made returnable on
5/10/2005, and granted interim relief in terms of para 9(B) of the
petition staying further proceedings of Criminal Complaint No. 955
of 2002 pending in the Court of Learned Chief Metropolitan
Magistrate, Ahmedabad. This matter is listed in the final hearing
board and is taken up for hearing.
The
respondent no.2 has filed the complaint in question invoking section
138 & 141 of N.I. Act, alleging that the complainant was
supplying iron & steel material to accused no.1 company. Accused
no.1 company issued cheque bearing No. 223307 dated 30/6/2002 for a
sum of Rs.70,00,000/- drawn on Janata Cooperative Bank Ltd, Nadiad
branch, came to be issued on behalf of the company signed by
petitioner no.4 for goods supplied at Modhera and Patan sites of the
company. Another cheque bearing no.647224 dated 30/6/2002 for
Rs.69,670/- was also issued drawn on Anand Mercantile Cooperative
Bank, Anand, for the goods supplied at Kapadwanj site. On receiving
telephonic instructions after receiving the same the complainant
deposited two cheques in its account, after informing the accused
that the cheques were to be deposited vide their communication dated
13/8/2002 and the cheques were deposited on 26/8/2002. The cheque in
question being cheque no. 223307 dated 30/6/2002 for sum of Rs.70.00
lakhs was returned back with remarks “refer to drawer”.
The complainant was therefore constrained to issue legal notice on
2/9/2002 sent by registered post acknowledgment due to accused no.1
company and its registered office at Lucknow as well as its branches
at Kapadwanj, Baroda, Bahuchraji district Mehsana. Notices were duly
served and acknowledgment due slips have been produced on record.
The company and directors failed in complying with the requirement
of making payment of cheque amount after expiry of the statutory
period, the complaint came to be filed which came to be registered
as Criminal Complaint No. 955 of 2002 in the Court of Chief
Metropolitan Magistrate, Ahmedabad, whereon the Court issued
process. Petitioners appears to have filed one petition being
Criminal Misc. Application No. 8717 of 2002 challenging issuance of
process and complaint which came to be termed to be evidenced by
this Court vide order dated 24/3/2002 passed in said Criminal Misc.
Application No. 8717 of 2002. Said order read as under.
” Heard
Learned Counsel for the respective parties.
At
the end of argument Learned Counsel for the petitioners seek
permission to withdraw this petition with a liberty to file
application for discharge and also for exemption before the court
below.
Permission
is granted as prayed for. This petition stand disposed of as
withdrawn. Notice is discharged. In the event of filing applications
for discharge as also exemption same shall be disposed of on merits
without being influenced by the order of withdrawal.”
Said
petition was sought to be withdrawn with a view to approach the
Court concerned for seeking discharge. The discharge application was
filed which came to be rejected by concerned Court vide order dated
19/2/2005 in light of the decision in case of Adalat Prasad Vs. Roop
Jindal & Anr, that once having taken cognizance of order process
cannot be recalled and discharge cannot be granted.
Thereafter
petitioners, as per their say, who left with no choice but to
approach this Court once again invoking section 482 of Cr.P.C. and
as it is stated herein above, this Court on 14/9/2005 issued rule
and granted interim relief staying further proceedings of the
complaint in question.
Learned
advocate appearing for the petitioners invited this Court’s
attention to the documents annexed to the petition to support his
contention that the complaint is required to be quashed as the
offence cannot be said to have been committed on account of the fact
as they emerge from reading of documents annexed to this petition.
The documents pressed into service for seeking support to the
contention for quashment are listed as under, namely :-
The
reply to the notice issued by original complainant dated 16/9/2002.
Relying
upon this document a contention was canvassed on behalf of the
petitioners that the petitioners have paid up the amount of liability
and therefore complaint is nothing but sheer abuse of process of law
and hence required to be quashed in exercise of power conferred upon
this Court under section 482 Cr.P.C. Leaned advocate for the
petitioners invited this Court’s attention to para-3, 4, and 7 to
support his contention that the adding of figures mentioned there
under coupled with narration in respect of dispatching demand drafts
and act of respondent no.2 in encashing those demand drafts without
disclosing the contents of the notice either in the memo of the
complaint or producing the same before the Court amount to mala fide
exercise of misuse of provisions of law for harassing the
petitioners. Therefore the complaint is required to be quashed.
Learned
advocate appearing for the petitioners relied upon the documents
produced on page-23, 24, 25, 26, 27 and 28 to indicate that these
are the books of accounts extracts maintained by complainant forming
of relevant entries made there under, which would conclusively show
that the liability existed on the date of issuance of cheque namely
cheque no. 8341843 came to be fulfilled and discharged on or before
10/10/2002 and the complaint thereafter came to be filed on next day
i.e. on 11/10/2002, after having deposited the demand drafts as
narrated in the reply to the notice and as it is reflected in the
extract of books of accounts of the complainant which have been
produced by complainant himself. Therefore the Court can accept
that the petitioners accused have aptly rebutted the presumption
available against them by virtue of provision of section 139 N.I.
Act. The petitioners have thus successfully rebutted the presumption
by traversing those documents and therefore in light of this entries
produced by the complainant himself the Court may come to the
conclusion that the petitioners are not liable to be proceeded
against and hence the complaint be quashed.
Shri
Patel, learned advocate appearing for the petitioners relying upon
the aforesaid documents and statements produced by respondent no.2
contended that the liability existed on the date of issuance of the
cheque dated 30/6/2002 had been discharged in its totality and
hence filing of the complaint on 11/10/2002 was sheer abuse of
process of law.
Shri
Patel has further submitted that learned advocate for the respondent
no.2 would not be justified in arguing that the amount was not sent
in time as the amount was remitted by demand drafts and the demand
drafts delivered should amount to discharging liability in is
totality as the demand drafts are acceptable mode of payment in the
commercial transaction.
Shri
Patel, learned advocate for the petitioners relying upon a decision
of his Court in case of BHRATBHAI K. PATEL Vs. C.L. VERMA (SINCE
DECD) THORUGH P.O.A. SURJIT SINGH MACKER & ANR, reported in 2002
(2) GLR pg. 1713, contended that, the Court while exercising
discretion under section 482 Cr.P.C. has to appreciate the attempt
to rebut legal presumptions and if rebuttal is found to be
acceptable, then, the accused petitioners may not be unnecessarily
subjected to rigors of criminal trial. The petition therefore may be
allowed qua all the surviving petitioners and the complaint in
question be quashed.
Shri
Patel, learned advocate for the petitioner relying upon a decision
in case of S.M.S PHARMACEUTICALS LTD Vs. NEETA BHALLA AND ANR.,
reported in 2005 (3) G.L.H. pg. 513 contended that in case if
the Court is not inclined to quash the complaint qua all, atleast
the complaint in question is required to be quashed qua petitioner
nos. 5 to 9 as the complainant has made no averments indicating
attributes which would render them vicariously liable under section
141 of N.I. Act.
Learned
advocate Shri Motiramani appearing for respondent no.2 submitted
that the proposition of law laid down in case of S.M.S.
Pharmaceuticals Ltd (supra) by the Apex Court cannot be disputed
and the Court, if inclined to quash the complaint qua the petitioner
nos. 5 to 9, may pass appropriate order, but for the rest of the
petitioners, namely the company as well as the signatory namely
accused no.1 and accused no.3 the complaint may not be quashed.
Relying
upon the decision of the Apex Court in case of M/s M.M.T.C. Ltd,
& ANR Vs. M/S MEDCHL CHEMICALS AND PHARMA (P) LTD & ANR,
reported in 2001 AIR SCW 4793, Shri Motiramani submitted that
the the complainant is not required to indicate in terms that their
subsists liability on the date of filing of the complaint. Learned
advocate for the respondent no.2 while answering the contention with
regard to discharge or not existing of liability on the part of the
petitioners, relying upon aforesaid Supreme Court decision contended
that the Court while exercising power under section 482 may not
undertake appreciation of evidence and therefore, on established
principle of law petition is required to be dismissed qua atleast
those accused who are signatory and responsible for issuance of
cheques.
Learned
advocate for respondent no.2 invited this Court’s attention to page
100 of the compilation and submitted that as per item no.10 dated
10/11/2002 outstanding liability is indicated and amount is
Rs.13,61,069/-. Learned advocate for respondent no.2 submitted that
the affidavit in reply is filed and in that affidavit in reply
respondent no.2 has not accepted the say of the petitioners that
there existed any liability when the complaint came to be filed. The
denial on the part of respondent no.2 therefore act as sufficient
ground for non-suiting the petitioners so far as this petition is
concerned, as under section 482 Cr.P.C., the Court would not
undertake appreciation of evidence and adjudicate upon rival
contentions of the complainant as well as accused petitioners.
This
Court has heard learned advocates for the parties and perused the
documents. The Court needs to be mindful of the fat that the
petitioners have approached this Court invoking provision of section
482 Cr.P.C. Exercise of discretion for quashment of complaint is to
be based upon impeccable plea of sheer abuse of process of law and
therefore, submission of learned advocate for the parties are
required to be examined from the point as to whether there is an
abuse of process of law at the end of the complainant / respondent
no.2 herein above in filing this complaint.
The
decision relied upon by learned advocate for respondent no.2 in case
of MMTC Ltd (supra) is containing the answer so far as the
submission with regard to non mentioning of payment mentioned in the
reply to the notice is concerned. The Court is of the view that
petitioners were not entitled to agitate on non disclosure of the
contents of the reply to the notice unless & until it is
impeccably capable of indicating that filing of the complaint was
sheer abuse of process of law. The reply to the notice therefore is
required to be examined. The Court at this stage needs to be mindful
of the fact that the Court is not to undertake any appreciation of
evidence. Therefore, the probative value of that document would not
be pronounced upon at this stage. The document and reading of the
document as it is along with document in the form of entries therein
has collectively persuaded this Court to observe that the liability
had not been discharged as argued by learned advocate for the
petitioners and in case if the said is discharged, then, it would be
for the trial Court to appreciate the evidentiary value after
recording the evidence at length of both the sides, namely
complainant as well as accused. The defence of there exist no
liability would not be available while examining the plea for
quashment of the complaint based upon such a defence. The degree of
impeccability required for accepting such a plea being conspicuously
absent, in the peculiar facts of the present case same would not
persuade this Court for quashing of the complaint. The Court rather
is persuaded to observe that there exist or appears to be an attempt
on the part of the petitioners to avoid or evade their contractual
liability arising out of the terms of the contract for making
payment in time and on failure of their part to pay the late payment
penalty. Be that as it may; the Court hasten to add here that the
Court is not here to bind on either way as the Court is not
examining the matter for appreciating the evidence. The appreciation
of evidence being in the realm of trial Court, this Court under
section 482 Cr.P.C. would restrain appreciating the evidence.
Learned advocate for the petitioners was not justified in relying
upon decision of this Court in case of Bharatbhai K. Patel (supra)
as the Court has in unequivocal terms observed that this rebuttal be
otherwise was capable in light of impeccable defence put forward in
the facts of this case, namely non existence of contract, lack of
privity etc. were the facts which weighed with the Court in
accepting submission on behalf of petitioner therein for quashment.
This Court, therefore, is of the view that the facts on that case
law is different than the facts in the present case and therefore
the judgment relied upon by learned advocate for the petitioners
would be of no available to the petitioners. The petition, in my
view, therefore is required to be quashed qua the petitioner no.1
and petitioner no.4, i.e. the accused no.1 and accused no.3
respectively.
This
bring this Court to decide the matter qua other petitioners /
accused. As averred in the memo of complaint their liability for
issuance of cheques exist. But those averments in my view are not
sufficient to render them liable to be subjected to rigors of
criminal trial and therefore in light of the decision cited at the
Bar in case of S.M.S. Pharmaceuticals Ltd (supra) the other
petitioners / directors who have not been named with their role in
the complaint are required to be protected and accordingly the
complaint qua them would stand quashed. The petition is therefore
disposed of as partly allowed. The complaint qua petitioner no.1 &
4, i.e. original accused no.1 and accused no.3 would survive and
complaint against rest of the petitioners / accused are quashed.
Complaint against petitioner no.3 / accused no.2 is abated. Rule
made absolute to the said extent.
Shri
Patel, learned advocate for the petitioners at this stage requests
for continuance of stay granted earlier qua petitioner nos. 1 &
4 / accused no.1 & 3 as the petition is not granted qua them.
This request is strongly objected by learned advocate for the
respondent no.2. The objection is overruled. The stay granted
earlier is therefore extended qua the petitioner nos. 1 & 4 /
accused no.1 & 3, for a further period up to 8/7/2011.
[
S.R. BRAHMBHATT, J ]
/vgn
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