Shri Pareshbhai Amrutlal Patel vs The State Of Gujarat

SHRI PARESHBHAI AMRUTLAL PATEL & ORS. .....APPELLANT(S)

VERSUS

THE STATE OF GUJARAT & ANR. .....RESPONDENT(S)

JUDGMENT

HEMANT GUPTA, J.

1. The present appeal is directed against an order passed by the High

Court of Gujarat on 11th December, 2017 whereby the petition for

quashing of FIR No. 3 of 2007 registered at PS Mehsana for offence

punishable under Sections 420, 406, 419, 467, 468, 379, 465, 475,

120-B and 114 of the Indian Penal Code, 18601 was dismissed.

2. The appellants had filed a complaint for an offence under Section

138 of the Negotiable Instrument Act, 1881 2 alleging that cheque

No. 567889 dated 1st March, 2005 in the sum of Rs.4,50,000/- was

issued by respondent No.2, which was dishonoured on presentation

with the remarks that the account closed on 28 th May, 2005. A

1 for short, ‘IPC’ 2 for short, ‘NI Act’

1 complaint bearing private criminal case No. 33537 of 2006 was

filed by appellant No.2 in the Court of Judicial Magistrate, Surat on

26th July, 2005.

3. It is thereafter, the complainant (respondent No. 2) filed a

complaint against the appellants for offences under Sections 420,

406, 419, 467, 468, 379, 465, 475, 120-B and 114 of IPC bearing

Criminal Case No. 9490 of 2008 on 17th October, 2007. The

learned Magistrate forwarded the said complaint to the Police in

terms of Section 156(3) of the Code of Criminal Procedure, 1973 3.

FIR No. 3 of 2007, as mentioned above, was lodged on the basis of

such order.

4. The appellants had sought quashing of the said FIR in a petition

under Section 482 of the Code which was dismissed by the High

Court. The respondent No.2 had alleged that three cheques

bearing Nos.567888, 567889 and 567890 were misplaced along

with letter heads, rubber stamps and other important documents

from the office of the Company and one of the cheques had been

used by the appellants which was dishonoured on presentation.

Therefore, the appellants have been rightly facing the prosecution

of the offences as mentioned in the FIR.

5. The stand of the appellants is that such cheque was given to them

along with letter dated 25th November, 2002 in view of the fact that

the Company had not issued shares for which the appellants had

3 for short, ‘Code’

2 contributed a sum of Rs.4,50,000/-. The cheque in question was

issued since the shares could not be issued, therefore, cheque was

issued payable after a long period.

6. No one has put in appearance on behalf of respondent No. 2 even

though served. We have heard learned counsel for the parties.

7. We find that the issue in both the complaints pertains to cheque

No. 567889 which was said to be from the cheque book of the

Company of which respondent No. 2 is the officer. The appellants

rely upon the said cheque in a complaint for an offence under

Section 138 of the NI Act whereas the respondent No.2-

complainant alleges that said cheque along with two other cheques

had been misplaced which were used by the appellants

fraudulently.

8. The complaint filed by the appellants under Section 138 of the NI

Act is earlier in point of time. The complaint filed by respondent

No.2 is more than two years later. Since the issue in both the cases

revolves around the same cheque, therefore, we find that instead

of quashing the FIR No. 3 of 2007, the ends of justice would meet if

proceedings arising out of FIR No. 3 of 2007 are transferred to the

Court of Judicial Magistrate, Surat, where the proceedings of other

complaint under Section 138 of the NI Act are pending so that the

complaint filed by the appellants and the proceedings arising out of

FIR alleged by respondent No. 2 are decided together to avoid

contradictory judgments and to facilitate the issues which are

3 common in both.

9. Consequently, the appeal is disposed of with the direction that the

proceedings arising out of FIR No. 3 of 2007 PS Mehsana shall

stand transferred to the Court of Judicial Magistrate, Surat where

the proceedings of complaint No. 33537 of 2006 is pending. Both

the cases shall be heard and decided together.

10. The parties are directed to appear before the Court of Judicial

Magistrate, Surat on 16th March, 2020 for further proceedings in

accordance with law.

.............................................J. (D.Y. CHANDRACHUD)

.............................................J. (HEMANT GUPTA)

NEW DELHI;

FEBRUARY 28, 2020.

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