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2019 Supreme(Guj) 998
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
A.P. THAKER, J.
Chintan Jayant Manjaratkar - Appellant
Versus
Rashidkhan Rasulkhan Pathan and Ors. - Respondents
R/Criminal Misc. Application No. 20851 of 2017
Decided On : 02-05-2019
For the Appellant : Ankur Y. Oza and Hasmukh R. Gurjar.
For the Respondents: Arpit P. Patel and Monali Bhatt, Addl. Public Prosecutor.
Headnote:
Negotiable Instruments Act, 1881 – Section 138 – Criminal Procedure Code – Section 482 – Complainant against applicant alleging that complainant desired of purchasing shop and for that, applicant's father told price and, complainant has paid by piecemeal payment and when the deal not finalized, he demanded back said amount from them and for that, they agreed to make payment by notarizing document applicant demanded for necessary process fees for loan purpose and, thereafter, he has given to them accused have given cheque in name of firm which objected by complainant insisting that cheque be given in his personal name, but they have stated that they have no other cheque and, therefore, it has given in name of the firm and he has put his signature, it is alleged that accused's father also issued cheque, it is further alleged that cheque returned back with endorsement 'stop payment by drawer' and, thereafter, after issuance of notice –Held, Cheques issued by accused to complainant with his signature and there monetary transaction between them, then in such case, inherent powers under Section 482 of Code of Criminal Procedure cannot be exercise –applicant and his father issued different cheques to complainant and accordingly, complainant lodged different complaints and he has also initiated civil proceedings, this shows that there is prima facie liability of payment on the part of applicant, in view of material placed in matter, it clearly appears that this is not fit case wherein inherent powers under Section 482 of Code of Criminal Procedure could be exercised – Appeal Dismissed. (Para 15, 16, 17)
Facts of the case:
Complainant against applicant alleging that complainant desired of purchasing shop and for that, applicant's father told price and, complainant has paid by piecemeal payment and when the deal not finalized, he demanded back said amount from them and for that, they agreed to make payment by notarizing document applicant demanded for necessary process fees for loan purpose and, thereafter, he has given to them accused have given cheque in name of firm which objected by complainant insisting that cheque be given in his personal name, but they have stated that they have no other cheque and, therefore, it has given in name of the firm and he has put his signature, it is alleged that accused's father also issued cheque, it is further alleged that cheque returned back with endorsement 'stop payment by drawer' and, thereafter, after issuance of notice
Findings of the court:
Cheques issued by accused to complainant with his signature and there monetary transaction between them, then in such case, inherent powers under Section 482 of Code of Criminal Procedure cannot be exercise –applicant and his father issued different cheques to complainant and accordingly, complainant lodged different complaints and he has also initiated civil proceedings, this shows that there is prima facie liability of payment on the part of applicant, in view of material placed in matter, it clearly appears that this is not fit case wherein inherent powers under Section 482 of Code of Criminal Procedure could be exercised
Result: Appeal Dismissed.
JUDGMENT :
A.P. Thaker, J.
1. By way of present application filed under Section 482 of the Criminal Procedure Code, the applicant seeks to quash and set aside the complaint being Criminal Case No. 18614 of 2017 pending before the learned 5th Additional Civil Judge and Chief Judicial Magistrate, First Class, Vadodara filed under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter be referred to as "the N.I. Act") and all incidental and consequential proceedings thereof.
2. Brief facts of the present case is that the complaint has been lodged by the complainant under Section 138 of the N.I. Act against the applicant alleging that the complainant was desired of purchasing the shop and for that, the applicant's father has told price at Rs. 30,00,000/- and, thereafter, the complainant has paid Rs. 24,00,000/- by piecemeal payment and when the deal was not finalized, he demanded back the said amount from them and for that, they have agreed to make the payment by notarizing document on 20.09.2016. It is alleged that thereafter, the applicant has demanded Rs. 1,00,000/- for necessary process fees for the loan purpose and, thereafter, he has given Rs. 1,00,000/- to them and thus, he was to get back Rs. 25,00,000/- from the accused, but they did not repay it. It is also alleged that thereafter, the accused have given cheque in the name of the firm which was objected by the complainant insisting that the cheque be given in his personal name, but they have stated that they have no other cheque and, therefore, it has been given in the name of the firm and it was for Rs. 10,00,000/- and he has put his signature. It is alleged that the accused's father has also issued cheque of Rs. 15,00,000/- of the State Bank of India dated 07.01.2017. It is further alleged that the cheque of Rs. 10,00,000/- returned back with an endorsement 'stop payment by the drawer' and, thereafter, after issuance of the notice, he has filed the complaint under Section 138 of the N.I. Act.
2.1. It is contended that the applicant has challenged the complaint on the ground that on various grounds. According to him, he has not committed any offence under Section 138 of the N.I. Act and the complaint is an abuse of process of law and based on false and fabricated facts. He has contended that the cheque in question is in the name of 'Sai Catering Service' and the complainant does not produce any documentary evidence of the said firm and in absence of such documentary evidence, the complainant has no locus standi to file the complaint.
2.2. It is contended that he has replied to the notice dated 22.03.2017 and has admitted that the amount given by the complainant of Rs. 1,00,000/- by issuing cheque has been returned back through his father's account of State Bank of India and, thereafter, the father of the applicant has also repaid Rs. 25,000/- by cheque. It is contended that the applicant's father was need of money of Rs. 75,000/- and, therefore, in June 2016, the complainant has given the said amount to his father and at that time, he got two blank cheques for security purpose and, thereafter, the applicant has repaid earlier amount by three cheques.
2.3. It is contended that the complainant has illegally misused two blank cheques and he has filled up the amount from the account of the father of the applicant and initiated proceedings vide Criminal Case No. 18615 of 2017. It is contended that for the cheque of Rs. 10,00,000/-, the complainant initiated the present complaint against the present applicant.
2.4. According to him, since both the cheques were given as security purpose and were blank cheques, Section 138 of the N.I. Act would not be applicable. It is his contention that the cheques must be issued against the discharge in whole or in part of any debt. According to him, in the present case, there is no transaction, consideration or legally enforceable dues against the present applicant. He has contended that by agreement dated 20.09.2016, liability cannot be
