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2021 Supreme(Guj) 359
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
GITA GOPI, J.
Dipikaben Alpesh Patel - Appellant
Versus
State of Gujarat - Respondent
R/Special Criminal Application No. 7028 of 2019
Decided On : 10-06-2021
Advocate Appeared:
For the Appellant : Mr P P Majmudar(5284)
For the Respondent: Mr Johnsey P Macwan(5498) Ms Monali Bhatt APP
Point of Law: Dishonored of cheque – quashed of criminal Proceedings - Drawer of such cheque fails to make payment of amount of money to payee or holder in due course of cheque within 15 days of receipt of said notice. Being cumulative it is only when all aforementioned ingredients are satisfied that person who had drawn cheque can be deemed to have committed an offence under Section 138 of Act.
Headnote:
Code of Criminal Procedure 1973 - Section 482 - Negotiable Instruments Act, 1881 - Section 138 and 141 - Constitution of India, 1950 - Article 226 – Cheque dishonored – Quash of complaint - Scope and ambit of powers of High Court under Section 482 of Code - Respondent no.2 preferred the complaint contending that accused of Criminal Case came in his contact through his younger brother - Accused developed friendly terms and thereafter as were in need of money asked hand loan from present respondent no.2 through intervention of his younger brother - Respondent no.2, therefore, gave the accused hand loan amount and accused promised to return same within a period of five months and when respondent no.2 demanded back the money, accused handed him a Cheque signed by accused no.1, who is husband of present petitioner.
Finding of the court: Powers under Section 482 are very wide, but it should be exercised in appropriate cases, ex debito justitiate to do the real and substantial justice - Plain reading of Section 138 makes it clear that it has to be strictly interpreted, as penal provision is made for commission of offence as prescribed under Section 138 of the N.I. Act. It is drawer of Cheque, who has to be made liable for the payment of amount of money due to the payee or the holder of the Cheque within statutory limits as provided, after the receipt of the legal notice demanding the cheque money - Trial against present petitioner in Criminal Case would be abuse of process of Court. Hence Court opinion that this is a fit case where the inherent powers of Court under section 482 of Cr.P.C. could be exercised in favour of applicant for securing the ends of justice.
Result: Application is allowed
JUDGMENT :
1. Rule. Ms. Monali Bhatt, learned APP and Mr. Johnsey P.Macwan, learned advocate for the respondent no.2 waives service of notice of Rule on behalf of respective parties. With the consent of the parties, the matter is heard finally today.
2. This petition has been filed under Article 226 of the Constitution of India as well as Section 482 of the Code of Criminal Procedure for quashing and setting aside the complaint being Criminal Case No.825 of 2019 pending before the learned 6th Additional C.J.M., Anand under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the ‘N.I. Act’ for short) and the consequential proceedings, if any, initiated in pursuance thereof .
3. It is contended in the petition that respondent no.2 preferred the complaint contending that the accused of Criminal Case No.825 of 2019 came in his contact through his younger brother, Pankajbhai Poonambhai Patel. The accused developed friendly terms and thereafter as were in need of money asked hand loan from the present respondent no.2 through intervention of his younger brother. The respondent no.2, therefore, gave the accused hand loan of Rs.5,50,000/- and accused promised to return the same within a period of five months and when respondent no.2 demanded back the money, the accused handed him a Cheque of Rs.5,50,000/- dated 24.12.2018 bearing Cheque No.281811, drawn on State Bank of India, Account No.30679619403, Chhani Road Branch, Vadodara, signed by accused no.1, who is husband of the present petitioner.
3.1 It is stated that the said Cheque of 24.12.2018 was deposited by the respondent no.2 in his Corporation Bank, Sudan Branch, Account No.346000101000161, which was dishonoured on 28.12.2018 with endorsement “Today’s Opening Balance Insufficient”. Thereafter, Demand Notice under Section 138 of the N.I. Act was sent through R.P.A.D., which was received by the accused on 12.01.2019. The said legal notice was replied on 29.01.2019, whereby the accused denied the contention raised by the present respondent no.2 in his Demand Notice and stated of taking a loan of Rs.1,00,000/- in the month of November, 2015 for a period of one year at the monthly interest of 5%. It is alleged that the present respondent no.2 had asked accused to give Cheques by way of security and against the loan of Rs.1,00,000/-, the accused had paid Rs.1,60,000/- to respondent no.2, but the said Cheques which were given by way of security were not returned and were deposited in the Bank to pressurize the accused.
3.2 It is contended that Criminal Case No.825 of 2019 has been filed in the Court of 6th Additional C.J.M. and Summons were issued to both the accused vide order dated 18.03.2019. The present petitioner has contended that she is not the signatory to the dishonoured Cheque and the said Cheque was issued from the Joint Account maintained by her along with her husband and thus on that ground stated that she cannot be held liable under Section 138 read with Section 141 of the N.I. Act and thus prayed for quashing and setting aside the process issued against her in Criminal Case No.825 of 2019.
4. Heard Mr. P.P. Majmudar, learned advocate for the petitioner, Mr. Johnsey P.Macwan, learned advocate for respondent no.2 and Ms. Monali Bhatt, learned APP for the State.
5. Mr. P.P. Majmudar, learned advocate for the petitioner submitted that no cognizance can be taken by the Court against the present petitioner, as the Cheque does not bear her signature and merely because the petitioner was a Joint Account holder along with her husband, false case has been filed against her. Mr. Majmudar referring to the order passed by the learned 6th Additional C.J.M., Anand below Exhibit-1, submitted that the learned trial Court Judge has not considered the provisions of law and without recording reasons Summons have been ordered to be issued on 05.02.2019 under Section 138 of the N.I. Act for the presence on 18.03.2019.
6. Relying on the case of Harshad Manubhai Lalavaiya Vs
