Small bench dismissed Criminal Misc. Applications seeking quashing of Section 138 proceedings held under the Negotiable Instruments Act. The Court noted trial commencement and findings of no abuse of process.
Applications dismissed. Notice discharged. Interim relief vacated forthwith.
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R/CR.MA/4620/2013 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 4620 of 2013 With
R/CRIMINAL MISC.APPLICATION NO. 4621 of 2013
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MILAN DINESHBHAI CHOLERA
Versus
STATE OF GUJARAT
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Appearance:
MR ANAND B GOGIA(5849) for the PETITIONER(s) No. 1 MS KAJAL L KALWANI(6623) for the PETITIONER(s) No. 1 MS MUSKAN A GOGIA(6624) for the PETITIONER(s) No. 1 MR ASHISH M DAGLI(2203) for the RESPONDENT(s) No. 2 MS. KRINA CALLA, APP (2) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MS.JUSTICE BELA M. TRIVEDI
Date : 05/12/2018
ORAL ORDER
1.The applicant – original accused has filed
the present Criminal Misc. Applications under
Section 482 of Cr.P.C. praying to quash the
proceedings i.e. Criminal Case No. 10237 of 2012
and 8923 of 2012 pending before the Court of
Chief Judicial Magistrate, Rajkot.
2.The short facts are that the respondent No.
2 – complainant has filed two separate
complaints before the trial court under Section
138 of the Negotiable Instruments Act, alleging
inter alia that the applicant had borrowed Rs.
50 lacs from the complainant on 24.05.2012, and
had promised to return by 24.07.2012. He had
also executed a promissory note and given two
cheques, one of Rs. 30 lacs bearing Cheque No.
Page 1 of 3
R/CR.MA/4620/2013 ORDER
001075, and other of Rs. 20 lacs bearing Cheque
No. 001076. According to the respondent
complainant, both the cheques had returned
dishonoured with the endorsement “funds
insufficient”. Hence, two separate complaints
under Section 138 of the Negotiable Instruments
Act were filed.
3.It is sought to be submitted by the learned
advocate Mr. Gogia for the applicant that the
respondent – complainant had obtained the
cheques by exercising force, and had deposited
the cheques before the due date agreed between
the parties. He also submitted that the
respondent - complainant had not produced any
books of accounts in support of his complaint
along with the list of documents and false
complaints were filed.
4.However, the learned advocate Mr. Dagli for
the respondent – complainant submits that the
trial of the case has already been commenced and
examination in-chief of the complainant has
already been recorded by the trial Court, and
therefore, the Court should not interfere.
5.Having regard to the allegations made in the
complaint, the Court is of the opinion that the
said complaints could not be said to be an abuse
of process of law. As transpiring from the
complaints, the notices issued by the
Page 2 of 3
R/CR.MA/4620/2013 ORDER
complainant prior to filing of the complaints,
had returned with the endorsement “refused”.
Whether the respondent had obtained the cheques
in question from the applicant by exercising
force or not, and whether the promissory note
was executed by the applicant under the threat
or coercion or not, would be a matter of
evidence. Hence, this is not the case in which
the Court should invoke its inherent powers
conferred under Section 482 of Cr.P.C. more
particularly when the trial has already
commenced. The judgments relied upon by the
learned counsel for the applicant are not
applicable to the facts of the present case at
this juncture, and therefore, not dealt with.
6.In that view of the matter, both the
applicationsaredismissed.Noticeis
discharged. Interim relief, if any, stands
vacated forthwith.
(BELA M. TRIVEDI, J)
AMAR SINGH
Page 3 of 3
3 issues framed by the court
Whether the Court should exercise its inherent powers under Section 482 of Cr.P.C. to quash proceedings where the trial has already commenced.
Whether the allegations of force or coercion regarding the issuance of cheques render the proceedings an abuse of process of law at this stage.
Whether the present case fits within the exceptions laid down in the judgments relied upon by the learned counsel for the applicant.
2 provisions across 2 enactments
MILAN DINESHBHAI CHOLERA
STATE OF GUJARAT
BELA M. TRIVEDI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court