CR.MA/12837/2007 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 12837 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE BANKIM.N.MEHTA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? Yes 2 To be referred to the Reporter or not ? No. 3 Whether their Lordships wish to see the fair copy of the judgment ? No. 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 ? No. 5 Whether it is to be circulated to the civil judge? No. ========================================================= HERBOVEDICS BIO TECH PVT.LTD & 1 - Applicant(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================================= Appearance : MR NACHIKETA S JOSHI for Applicant(s) : 1 - 2.MR SUDHAKAR B JOSHI for Applicant(s) : 1 - 2. PUBLIC PROSECUTOR for Respondent(s) : 1, MR SIRAJ R GORI for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 11/07/2008 ORAL JUDGMENT : 1. The petitioners have filed the present petition u/s 482 of the Code of Criminal Procedure, 1973 and prayed to quash and set aside the complaint filed by respondent No. 2. 2. The petitioners were prosecuted for the CR.MA/12837/2007 2/8 JUDGMENT offence punishable u/s 138 of the Negotiable Instruments Act, 1881 on the basis of the complaint filed by respondent No.2. It is alleged in the complaint that petitioners appointed respondent No. 2 as an agent for their product but the agency was terminated. On full and final settlement of the accounts, petitioners issued two cheques in favour of respondent No.2 but the cheques, when tendered in the Bank were dishonoured with an endorsement of “Payment stopped by the drawer”. Therefore, respondent No.2 – complainant served a notice of demand to the petitioners. The notice was received by the petitioners, but they did not give reply to the notice nor paid the amount of cheques as demanded in the notice. Therefore, respondent No. 2 filed complaint u/s 138 of the Negotiable Instruments Act, 1881. 3. After following due procedure, the trial court issued process against the petitioners. Therefore present petition is filed to quash the complaint. 4. I have heard the learned advocate Mr. N.S. Joshi for the petitioners, learned A.P.P. Mr. K.P. Raval and learned advocate Mr. Siraj Gori for respondent No. 2, at length and in great detail. CR.MA/12837/2007 3/8 JUDGMENT 5. It appears that there is no dispute with regard to the fact that there were business transactions between the parties and in connection therewith the petitioners gave two cheques to respondent No. 2. It is also not in dispute that both these cheques returned dishonoured with the endorsement “Payment stopped by drawer”. It appears that notice was served to the petitioners demanding the amount of cheques and it was received by the petitioners but neither they replied to the notice nor they paid the amounts as demanded in the notice. Therefore, the complaint came to be filed. 6. Learned advocate Mr. Joshi submitted that after issue of two cheques, there was settlement between the parties and the petitioners gave a new cheque as per the settlement and two cheques given earlier were not to be tendered in the Bank but respondent No. 2 did not act as per settlement and deposited the cheques. Therefore, the petitioners gave instructions to their Banker to stop the payment. Hence, it cannot be said that the petitioners have committed offence punishable u/s 138 of Negotiable Instruments Act, 1881. 7. Learned advocate Mr. Gori submitted that as requirements of the Negotiable Instruments Act, 1881 are satisfied the complaint could not be CR.MA/12837/2007 4/8 JUDGMENT quashed. 8. Learned A.P.P. supported the submissions of the learned advocate Mr. Gori for the respondent No.2. 9. It is not in dispute that the cheques in question were given by the petitioners but according to them there was settlement and the cheques were not to be tendered in the Bank as a new cheque was given to the respondent No. 2. It appears that the respondent No. 2 served a notice demanding the amount of two cheques but the petitioners neither gave reply to the notice nor complied with the demand. Therefore, the defence that there was settlement and a new cheque was given to the respondent No. 2 has come for the first time in this proceeding. It is settled proposition that power u/s 482 of the Criminal Procedure Code has to be exercised in rarest of the rare case. In the decision of State of Haryana & Ors. Vs. Bhajanlal & Ors., reported in 1992 Supp (1) SCC 335, the Hon'ble Supreme Court has by way of illustration categorised the cases wherein the extra ordinary power under Article 226 of the Constitution of India and or inherent powers u/s 482 of the Code of Cr.PC can be exercised by the High Court. It is held by the Court that such power could be exercised either to prevent abuse of the process of any CR.MA/12837/2007 5/8 JUDGMENT Court or otherwise to secure the ends of justice. In the instant case, the complaint prima-facie indicates that the petitioners gave two cheques to respondent No.2 and both these cheques were dishonoured by the Bank and therefore notice of demand was served to respondent No. 2 which was received by the petitioners. Therefore, requirements of Section 138 of the Negotiable Instruments Act, 1881 are fully satisfied and the petitioners have failed to indicate that the proceedings initiated are either abuse of process of law or the complaint is required to be quashed to secure the ends of justice. 10. It is submitted by learned advocate Mr. Joshi that the Power of Attorney has filed the complaint and therefore it is not according to law and not maintainable. In the decision of Ajay Ramniklal Modi & Ors. V/s. State of Gujarat & Anr., reported in 1997 (2) G.L.H. 1078, this Court has held that agent or power of attorney of payee or holder of an instrument can file complaint u/s 138 of the Negotiable Instruments Act, 1881. In the decision of Valkubhai Rambhai Kathi V/s. The State of Gujarat, reported in 1998 (2) G.L.H. 846, this Court has taken a view that lodging of complaint by the power of attorney holder of the payee could not be said to be illegal or invalid. In view of these decision, the contention with regard to maintainability of CR.MA/12837/2007 6/8 JUDGMENT the complaint advanced by learned advocate Mr. Joshi cannot be accepted. 11. Learned advocate Mr. Joshi also submitted that respondent No.2 could have filed civil suit and therefore criminal action is not maintainable. In the decision of INDIAN OIL CPRORATION VS.NEPC INDIA LTD. & OTHERS, reported in (2006) 6 SCC 736, the Hon'ble Apex Court has held that if the allegations contained in the complaint taken on their face value, if, constituted offence, complaint could not be quashed merely because it relates to commercial transactions for which civil remedy is available. In the instant case, as observed earlier, prima facie ingredients of offence punishable under Section 138 of the Negotiable Instruments Act, 1881 are satisfied. Therefore, this submission also cannot be accepted. 12. Learned advocate Mr. Joshi also relied on the decision of Saritha Ramamurthy and Anr. Vs. R.B.S. Channabasavaradhya reported in (2006) 10 SCC 581, This decision is with regard to averments to be made in the complaint. As observed earlier, necessary averments with regard to right of the respondent complainant and the liability of the petitioners have been averred in the complaint. Therefore, this decision does not help the petitioners. CR.MA/12837/2007 7/8 JUDGMENT 13. Learned advocate Mr. Joshi further relied on the decision of Y. Vijayalakshmi alias Rambha Vs. Manickam Narayanan, reported in 2005 CRI. L.J. 3572. This decision is with regard to right of the person to lodge complaint. But this decision is not helpful to the petitioners. 14. In the decision of Central Bureau of Investigation V/s. K.M. Sharan, reported in 2008 AIR SCW 1649, the Hon'ble Supreme Court has held that in the proceedings under Section 482 of the Cr. P. C. the High Court should not embark upon inquiry whether allegation in F.I.R. and charge sheet were reliable or not or about veracity of allegations. In view of this decision, at this stage, this Court would not embark upon the inquiry whether the allegations made in the complaint are reliable or not or about veracity of the allegations. Therefore, this petition does not merit acceptance. 15. In view of above, no case is made out by the petitioners for exercise of extra ordinary power u/s 482 of the Cri. P. C. Therefore, this petition is required to be dismissed. Accordingly, this petition fails and stands dismissed. Rule stands discharged. CR.MA/12837/2007 8/8 JUDGMENT (Bankim N. Mehta, J.) /JVSatwara/