Back
Gujarat High Court
Judgename :J.R.Vora
SHANKU CONCRETES PRIVATE LIMITED - Appellant
Versus
STATE - Respondent
CRI.M.A. 4171 of 1999
Decided On : 11/30/1999
The intention of the parties is clear from this averments that the cheques were issued as the collateral security for the due performance of the contract, by which the Company and the Director i.e. account No. 2 bound themselves to repay the said amount. It is, therefore, clear that cheques were not issued to discharge any existing debt.
[Para 13]
The transaction from its very nature or from the intention of the parties, as reflected in the agreement executed between the parties, is purely of a civil nature, for which a civil suit has already been filed. The very fact that the payment was agreed to some future date and there was no debt or liability on the date of delivery of the cheques, will take the case out of the purview of the Sec. 138 of the Negotiable Instruments Act.
[Para 14]
(b) Criminal Procedure Code, 1973 — Sec. 482 — Scope — Exercise of inherent power suo motu by the High Court — Fact brought into notice of the High Court — Petition not filed by `J.K. but filed by petitioner Nos. 2 & 3 is not a ground to reject the petition — High Court can take the cognizance.
So far as the arguments of that this application at the instance of petitioners No. 2 & 3 is not maintainable to the benefit of the accused No. 2 i.e. Mr. Jaidev Kotak is concerned, the same cannot be upheld for the simple reason that the powers of the High Court under Sec. 482 are so wide as even to entertain a suo moto petition or anything which is brought to the notice of the High Court by any person and, therefore, mere fact that this petition is filed by petitioners No. 2 & 3 who were not the accused in the complaint, could not be a ground to reject the petition.
[Para 15]
(c) Criminal Procedure Code, 1973 — Sec. 482 — Quashing of complaint or proceedings — Accused can approach for quashing at any stage — When no offence is disclosed, High Court has ample powers to quash the complaint or proceedings — It is not necessary to direct the accused to file proper application before the Magistrate to drop the proceedings or discharge.
The accused has right to approach the High Court at any stage for quashing with the allegations that complaint prima facie does not disclose any offence. When it appears to the High Court under Sec. 482 of the Code that complaint does not disclose any offence, it has ample powers to quash the proceedings and the complaint and accused need not in all cases be relegated to the learned Magistrate directing the accused to file proper application for discharge or dropping of the proceedings. The complaint filed under Sec. 138 of the Negotiable Instruments Act in this case discloses no criminal liability as envisaged under Sec. 138 of the Act and therefore, the complaint is required to be quashed.
[Para 17]
( 1 ) RULE. Learned APP Mr. K. P. Raval waives service of rule on behalf of respondent No. 1 and learned counsel Mr. D. D. Vyas waives service of rule on behalf of respondent No. 2. With the consent of the learned advocates appearing for the parties, the matter is finally heard and decided today.
( 2 ) THIS application is filed by the petitioners under Sec. 482 of the Criminal Procedure Code to quash a criminal complaint. The extent of criminal liability, which arises under Section 138 of the Negotiable Instruments Act, 1881, is the real controversy, which is the crux of the matter, requires to be adjudicated. The transactions which are other wise exclusively commercial and subject to civil jurisdiction, now by enacting Section 138 of the Negotiable Instruments Act, attaches criminal liability against the persons involved in such transaction. A careful judicial scrutiny and a deep probe is necessary to set at rest the battle arising from the commercial transaction.
( 3 ) LOOKING to the brief facts of the case it is revealed that one Shanku Concretes Pvt. Ltd. , Halol, District Panchmahals, a company incorporated through its Managing Director Mr. Jaidev Kotak, residing at Bombay, obtained advance of Rs. 15 lacs from one Balbhadrasinh Indrasinh Zala, residing at Surendranagar. It appears that vide an agreement dated 5/06/1995, the company Shanku Concretes Pvt. Ltd. through its Managing Director Mr. Jaidev Kotak entered into a contract with the above said Balbhadrasinh Indrasinh Zala and obtained advances by way of a debt of Rs. 15 lacs to promote the production of the company. On that day, the amount of Rs. 15 lacs were paid to Mr. Jaidev Kotak, Managing Director. The agreement termed that the amount was to be returned after six months and during that period Managing Director Mr. Jaidev Kotak, as per the arrangement between the parties, issued seven cheques of due dates with a stipulation that if cheques are bounced, Balbhadrasinh Indrasinh Zala may take action against the company. Then, thereafter, a Criminal Case No. 132 of 1996 came to be filed by said Balbhadrasinh Indrasinh Zala in the court of Judicial Magistrate, First Class, at Lakhtar, against two accused - (i) Shanku Concretes Pvt. Ltd. and (2) Mr. Jaidev Kotak, under Section 138 of the Negotiable Instruments Act. It was alleged in the complaint by the complainant that the accused No. 2 induced the complainant to believe that the post dated cheques referred to above, will be accepted by bank and that the complainant would get the amount of the cheque. Out of those cheques, the complainant deposited two cheques to the account of the Union Bank of India, which were bounced with an endorsement that the fund was insufficient in the account of the accused and, therefore, the complaint. The complainant gave notice to the accused on 6/05/1996, but within the statutory period of 15 days, the accused did not pay the amount. Learned Judicial Magistrate, First Class, Lakhtar, was pleased to issue process in the above said complaint against the accused. Summons was served on accused No. 2, but he did not appear before the learned Magistrate and, therefore, the necessary procedure is being followed by the learned Judicial Magistrate.
( 4 ) DURING the pendency of the above said Criminal Case, the original complainant preferred one application before the Judicial Magistrate, First Class, Lakhtar, with a prayer to implead (1) Mr. Sandip Jaidev Kotak and (2) Mr. Kunal Jaidev Kotak as accused in the above said criminal case who are petitioners No. 2 and 3 in this petition. Learned Judicial Magistrate was pleased to issue notices to the above said Mr. Sandip Jaidev Kotak and Mr. Kunal Jaidev Kotak.
( 5 ) NOW, this petition is filed by (i) Shanku Concretes Pvt. Ltd. , (ii) Sandip Jaidev Kotak and (iii) Kunal Jaidev Kotak, against (i) State of Gujarat and (ii) Balbhadrasinh Indrasinh Zala - original complainant. It is urged that a Criminal Case No. 132 of 1996 be quashed beca
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
