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Supreme Court of India
Rajeshbhai Muljibhai Patel vs The State Of Gujarat on 10 February, 2020Author: R. Banumathi
Bench: R. Banumathi, A.S. Bopanna
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 251-252 OF 2020
(Arising out of SLP(Crl.) Nos.142-143 of 2019)
RAJESHBHAI MULJIBHAI PATEL
AND OTHERS ETC. …Appellants
VERSUS
STATE OF GUJARAT AND ANOTHER ETC. …Respondents
JUDGMENT
R. BANUMATHI, J.
Leave granted.
2. These appeals arise out of the impugned judgment dated
14.12.2018 passed by the High Court of Gujarat at Ahmedabad
dismissing Criminal Misc. Application No.2735/2017 thereby
declining to quash the FIR No.I-194/2016. By the same order, the
High Court has allowed Criminal Misc. Application No.24588 of
2017 and quashed the criminal case in C.C.No.367/2016 filed by
appellant No.3-Hashmukhbhai Ravjibhai Patel against accused
Yogeshbhai Muljibhai Patel under Section 138 of N.I. Act.
Signature Not Verified
Digitally signed by
3. Brief facts which led to the filing of these appeals are as
MADHU BALA
Date: 2020.02.10
16:42:29 IST
Reason:
under:-
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Appellant No.1-Rajeshbhai Muljibhai Patel is the real brother
of Yogeshbhai Muljibhai Patel who is the accused in
C.C.No.367/2016 filed under Section 138 of N.I. Act by appellant
No.3-Hashmukhbhai Ravjibhai Patel. Both appellant No.1-
Rajeshbhai and his brother Yogeshbhai are stated to be residents of
United Kingdom. In this appeal, appellant No.1-Rajeshbhai is
represented through his Power of Attorney holder-appellant No.2-
Vipulkumar Hasmukhbhai Patel. Respondent-Yogeshbhai is
represented through his Power of Attorney holder-another
respondent-Mahendrakumar Javaharbhai Patel.
4. On 08.12.2015, appellant No.3-Hasmukhbhai Ravjibhai Patel
filed a criminal case being C.C.No.367/2016 against accused
Yogeshbhai under Section 138 of N.I. Act. The father of appellant
No.1-Rajeshbhai and Yogeshbhai had agricultural lands bearing
Block/Survey Nos.534, 536/1/A, 536/1/B, 538, 539, 540, 541/1, 542
and 543 situated at Village Fofaliya, Ta. Dabhoi, District Vadodara.
In 2010, in order to sell his father’s land, Yogeshbhai called up
appellant No.3 who is also the maternal uncle of Yogeshbhai and
Rajeshbhai. Since appellant No.3 was also planning of buying some
agricultural land from the surplus funds which he has received from
the sale of his agricultural land, he accepted the proposal of
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Yogeshbhai. Yogeshbhai who is residing in United Kingdom showed
his intention to come to India for executing the sale deed of his
lands in favour of appellant No.3 and asked to pay the money to
respondent No.2-Mahendrakumar Javaharbhai Patel. Accordingly,
appellant No.3 gave Rs.30,00,000/- each on four days viz.
21.08.2010, 22.08.2010, 26.08.2010 and 28.08.2010 as part
payment, the total amounting to Rs.1,20,00,000/- to respondent
No.2-Mahendrakumar, who issued receipts for the said payments of
amount for and on behalf of accused Yogeshbhai. In 2015, accused
Yogeshbhai came to India and arranged meeting with appellant
No.3. In the meeting, Yogeshbhai informed appellant No.3 that he
has already executed a registered Sale Deed No.1229/2013 dated
16.07.2013 in favour of one M/s Brentwood Industries India Pvt. Ltd.
thereby, selling the above referred lands to that company which was
agreed to be sold to appellant No.3.
5. Knowing all these facts, appellant No.3 demanded his legal
outstanding debt from Yogeshbhai immediately i.e. total of
Rs.1,20,00,000/- and Yogeshbhai promised to refund the amount by
issuing four cheques each of Rs.30,00,000/- each in favour of
appellant No.3. Accordingly, accused Yogeshbhai issued cheques
bearing Nos.8108 and 8109 of NRO Account No.08540107512 on
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12.10.2015 and cheque Nos.20801 and 20802 of NRE Account
No.085401000566 on 30.10.2015. As per appellant No.3, at the
time of issuance of cheques, Yogeshbhai gave assurance of the
clearance of above cheques.
6. Two cheques bearing Nos.8108 and 8109 dated 12.10.2015
of NRO Account No.08540107512 amounting to Rs.30,00,000/-
each were dishonoured on the same day i.e. on 12.10.2015 on the
ground of “Payment stopped by the Drawer”. The third cheque was
of NRE Account No.085401000566 with cheque bearing
No.20801 dated 30.10.2015 amounting to Rs.30,00,000/- and the
fourth cheque was also of NRE Account No.085401000566 with
cheque bearing No.20802 dated 30.10.2015 amounting to
Rs.30,00,000/-. When those two cheques drawn on NRE Account
No.085401000566 were presented before the Bank on the same
day i.e. on 30.10.2015, those cheques were also returned on the
same day with the endorsement “Payment stopped by the Drawer”.
Thereafter, appellant No.3 sent a legal notice to Yogeshbhai on
17.11.2015 demanding payment of money which notice was
delivered on 23.11.2015.
7. Insofar as dishonor of cheques bearing Nos.8108 and 8109
dated 12.10.2015 of NRO Account No.08540107512, they were
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returned unpaid on 12.10.2015. The Complainant issued notice on
17.11.2015 and therefore, claim qua the two cheque Nos.8108 and
8109 are barred by limitation under the provisions of Negotiable
Instruments Act. The complaint therefore, pertains only for cheque
Nos.20801 and 20802 of NRE Account No.085401000566 which
were returned unpaid on 30.10.2015. Complaint under Section 138
of N.I. Act against Yogeshbhai was taken on file on 05.02.2016 in
C.C.No.367/2016. On 06.09.2016, the Court of 5 th Additional Civil
Judge & JMFC, Bharuch issued a bailable warrant for production of
accused Yogeshbhai.
8. Appellant No.3-Hasmukhbhai has filed a Special Summary
Suit No.105/2015 before the Additional Chief Judicial Magistrate,
Vadodara for recovery of Rs.1,20,00,000/- under Order 37 of CPC.
Summary Suit No.105/2015 filed by appellant No.3 was based on
the four receipts issued by respondent No.2-Mahendrakumar. The
Court in that case has issued summons for appearance against
Yogeshbhai and Mahendrakumar which has been served on
01.11.2015. According to the respondents, they came to know
about those four receipts only after they have been served with
summons in the said suit. Alleging that the appellants have forged
and fabricated the four receipts, respondent No.2-Mahendrakumar
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has filed the complaint for cheating and forgery against the
appellants. Based on the said complaint, FIR No.I-194/2016 was
registered against the appellants under Sections 406, 420, 465,
467, 468, 471 and 114 IPC. Respondent No.2-Mahendrakumar has
alleged that the appellants joined together and prepared fabricated
receipts of Rs.1,20,00,000/- bearing forged signature of respondent
No.2 and produced these forged receipts as true.
9. In the FIR, it was averred that Yogeshbhai, who is residing in
United Kingdom had executed a power of attorney dated
14.03.2013 in favour of Mahendrakumar for administration of his
lands. On the basis of this power of attorney, Mahendrakumar
executed an Agreement to Sale in favour of one Jigneshbhai
Dhanesh Chandra Shah on 16.04.2013. Thereafter, Yogeshbhai
came from London and executed a registered Sale Deed
No.1229/2013 dated 16.07.2013 in favour of M/s Brentwood
Industries India Pvt. Ltd. for Rs.6,16,44,000/-. In the sale deed, the
agreement to sale holder has signed as confirming party. In
consideration of the sale deed, the land owner was to receive
Rs.6,16,44,000/- and the confirming party-Jigneshbhai was to
receive Rs.1,13,94,000/-. Yogeshbhai is the elder brother of
appellant No.1-Rajeshbhai. Appellant No.1 had filed a Special Civil
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Suit No.284/2013 before the Court of Principal Civil Judge, Bharuch
claiming his share in the said land sold by Yogeshbhai. In the said
suit, Yogeshbhai, his mother Kanchanben, respondent No.2-
Mahendrakumar and Jigneshbhai were arraigned as defendants.
The said suit was compromised between appellant No.1 and
Yogeshbhai in London and Yogeshbhai was to pay Rs.90,00,000/-
to Rajeshbhai-appellant No.1. Appellant No.1 agreed to issue NOC
and promised that his power of attorney holder-appellant No.2-
Vipulkumar Hasmukhbhai Patel will issue NOC. Accordingly,
Yogeshbhai had come from London and his power of attorney
holder-appellant No.2-Vipulkumar had executed NOC letter in
presence of Notary H.J. Zala on 23.09.2015. There was various
correspondence between the parties and the company
M/s Brentwood Industries India Pvt. Ltd. regarding payment of said
Rs.90,00,000/-.
10. Appellants No.1 to 3 filed Criminal Misc. Application
No.2735/2017 before the High Court under Section 482 Cr.P.C. for
quashing of FIR No.I-194/2016. Yogeshbhai who is the accused in
the criminal case being C.C.No.367/2016 also filed Criminal Misc.
Application No.24588/2017 for quashing of cheque case filed
against him under Section 138 of N.I. Act. Yogeshbhai claimed that
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he has given the cheques to appellant No.3-Hasmukhbhai who
approached him requesting for help to purchase land. Yogeshbhai
alleged that the appellants have forged the receipts issued by
respondent No.2-Mahendrakumar. In this regard, Yogeshbhai
placed reliance upon the report of the hand-writing expert,
Directorate of Forensic Science dated 15.12.2016 as per which, the
disputed signatures of Mahendrakumar Javaharbhai on the receipts
were not written by him i.e. respondent No.2-Mahendrakumar
Javaharbhai.
11. Vide the impugned judgment dated 14.12.2018, the High
Court dismissed Criminal Misc. Application No.2735/2017 and
declined to quash the FIR No.I-194/2016. The High Court held that
on the basis of four receipts allegedly issued by Mahendrakumar,
the third appellant-Hasmukhbhai has filed the Summary Suit
No.105/2015 for recovery of Rs.1,20,00,000/-. The High Court
referred to the hand-writing expert’s opinion who has opined that the
signatures found in the receipts do not tally with the signature of
respondent No.2-Mahendrakumar. The High Court held that looking
into the allegations and the facts, prima facie case of forgery and
cheating are made out against the appellants and accordingly,
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declined to quash the FIR No.I-194/2016 and dismissed Criminal
Misc. Application No.2735/2017.
12. On the basis of order passed in Criminal Misc. Application
No.2735/2017, the Criminal Misc. Application No.24588/2017 filed
by Yogeshbhai was allowed and the criminal case in
C.C.No.367/2016 filed by appellant No.3-Hasmukhbhai under
Section 138 of N.I. Act was quashed. The High Court held that
based on the alleged forged receipts, criminal case has been filed
under Section 138 of N.I. Act and the cheque case cannot be
proceeded with and accordingly, quashed the criminal case in
C.C.No.367/2016 filed under Section 138 of N.I. Act. Being
aggrieved, the appellants have filed these appeals.
13. Mr. D.N. Parikh, learned counsel for the appellants has
submitted that the High Court has failed to appreciate that the FIR
lodged by respondent No.2-Mahendrakumar is false and frivolous
as the same subject matter is pending consideration in Summary
Suit No.105/2015. It was submitted that at least two cases viz.
Special Summary Suit No.105/2015 and criminal case in
C.C.No.367/2016 filed under Section 138 of N.I. Act are pending
before the competent court and while so, the criminal case could not
have been registered on the four receipts which are the subject
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matter of the pending litigations between the parties. It was further
submitted that in the Summary Suit No.105/2015, issue No.5
framed by the Court is “whether the defendant proved that the
plaintiff has fabricated the forged signature illegally and created
forged receipts” and the FSL report-report of the handwriting expert
is filed in the said suit and the Civil Court is yet to determine the
issue as to the genuineness of the receipts. Learned counsel
submitted that the High Court has failed to appreciate that the
opinion of the handwriting expert is relevant evidence, but it is not a
conclusive evidence and Section 73 of the Indian Evidence Act
empowers the Court to compare the admitted and disputed writings
for the purpose of forming Court’s opinion. It was contended that
when the genuineness of four receipts is an issue in the civil suit
and the dispute is of civil nature, the continuation of the criminal
case is an abuse of process of the Court and the FIR No.I-
194/2016 is liable to be quashed. It was also contended that the
High Court erred in quashing the cheque case filed under Section
138 of N.I. Act and the High Court did not keep in view that
issuance of cheques by Yogeshbhai from his NRE Account has
been admitted.
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14. Refuting the above contentions, Ms. Aishwarya Bhati, learned
Senior counsel for the respondents has submitted that appellant
No.3-Hashmukhbhai is the maternal uncle of Yogeshbhai and
relying upon the words of appellant No.3 and his son-appellant
No.2-Vipulkumar, Yogeshbhai issued two cheques bearing
Nos.8108 and 8109 for Rs.30,00,000/- each from his NRO Account
and after issuing the cheques, Yogeshbhai realised that there was
no funds in the said account and he asked appellant No.3 to return
the above cheques and collect new cheques of another account. It
was submitted that thereafter Yogeshbhai issued new cheques of
NRE Account bearing Nos.20801 and 20802 of Rs.30,00,000/- each
and at that time, appellant No.3 had told that he had not brought the
old cheques with him and will return the old cheques in a day or two
but never returned the cheques. Learned Senior counsel submitted
that Yogeshbhai got suspicious and on making enquiry, he found
that appellants No.2 and 3 were not intending to purchase any
lands and thus, he has instructed the Bank to stop payment for all
the four cheques. Learned Senior counsel further submitted that
appellants made four forged receipts of Rs.30,00,000/- each by
forging the signatures of respondent No.2-Mahendrakumar and the
handwriting expert opined that four receipts relied upon by appellant
No.3-Hasmukhbhai have not been signed by respondent No.2-
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Mahendrakumar and on the basis of FSL report, FIR No.I-194/2016
has been registered under Sections 406, 420, 465, 467, 468, 471
and 114 IPC. It was submitted that since there is a prima facie case
of forgery and cheating made out against the appellants, the High
Court rightly declined to quash the FIR and the impugned order
warrants no interference.
15. We have carefully considered the submissions and perused
the impugned order and other materials on record.
16. The issue relates to the alleged forgery of four receipts dated
21.08.2010, 22.08.2010, 26.08.2010 and 28.08.2010 each for a
sum of Rs.30,00,000/- totalling to Rs.1,20,00,000/- issued by
respondent No.2-Mahendrakumar. For the recovery of the amount
of Rs.1,20,00,000/-, appellant No.3-Hasmukhbhai filed Special
Summary Suit No.105/2015 in October, 2015. After receiving
summons in Summary Suit No.105/2015, respondent No.2-
Mahendrakumar entered appearance and filed application seeking
leave to defend and the said application was allowed on
19.04.2016. On application filed by appellant No.3-Hasmukhbhai in
the Summary Suit No.105/2015, four receipts were sent to Forensic
Science Laboratory for obtaining the opinion of handwriting expert.
The handwriting expert’s report was received in the Court on
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15.12.2016 to the effect that all the four receipts were not signed by
respondent No.2-Mahendrakumar. It was thereafter on the
complaint filed by respondent No.2, FIR No.I-194/2016 dated
28.12.2016 was registered against the appellants for the offences
punishable under Sections 406, 420, 465, 467, 468, 471 and 114
IPC.
17. In C.C.No.367/2016, case of appellant No.3-Hasmukhbhai is
that Yogeshbhai issued four cheques each for a sum of
Rs.30,00,000/-, details of which are as under:-
S.No. Date Cheque Account Amount Date of
No. Dishonour
1. 12.10.2015 8108 NRO Account Rs.30,00,000/- 12.10.2015
No.08540107512
2. 12.10.2015 8109 NRO Account Rs.30,00,000/- 12.10.2015
No.08540107512
3. 30.10.2015 20801 NRE Account Rs.30,00,000/- 30.10.2015
No.085401000566
4. 30.10.2015 20802 NRE Account Rs.30,00,000/- 30.10.2015
No.085401000566
Total Rs.1,20,00,000/-
On presentation, the above cheques were dishonoured on the
ground “Payment stopped by the Drawer”. After issuing the legal
notice, appellant No.3-Hasmukhbhai filed criminal case in
C.C.No.367/2016 on 08.12.2015 pertaining to two cheques bearing
Nos.20801 and 20802. It was only thereafter, respondent No.2-
Mahendrakumar had filed the criminal complaint dated 20.03.2016
and also filed another criminal complaint dated 14.04.2016 against
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appellant No.1-Rajeshbhai and appellant No.2-Vipulkumar. Since
the police had not registered the FIR, respondent No.2 filed SCRA
No.5945/2016 and SCRA No.6349/2016 before the High Court for
seeking directions for lodging FIR. The High Court vide orders dated
04.10.2016 and 06.09.2016 disposed of those petitions directing the
police to investigate into the matter.
18. Be that as it may, in the Summary Suit No.105/2015, leave to
defend was granted to respondent No.2-Mahendrakumar on
19.04.2016. On the application filed by appellant No.3 in the said
Summary Suit No.105/2015, four receipts filed in the suit were sent
to the handwriting expert. The handwriting expert has opined that
signatures in all the four receipts did not tally with the sample
signatures which were of respondent No.2-Mahendrakumar. It was
only thereafter, complaint was filed by Mahendrakumar, based on
which, FIR No.I-194/2016 was registered on 28.12.2016 against the
appellants for the offences punishable under Sections 406, 420,
465, 467, 468, 471 and 114 IPC. As rightly contended by the
learned counsel for the appellants, in the Summary Suit
No.105/2015, issue No.5 has been framed by the Court “whether
the defendant proved that the plaintiff has fabricated the forged
signature illegally and created forged receipts”. When the issue as
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to the genuineness of the receipts is pending consideration in the
civil suit, in our view, the FIR ought not to have been allowed to
continue as it would prejudice the interest of the parties and the
stand taken by them in the civil suit.
19. It is also to be pointed out that in terms of Section 45 of the
Indian Evidence Act, the opinion of handwriting expert is a relevant
piece of evidence; but it is not a conclusive evidence. It is always
open to the plaintiff-appellant No.3 to adduce appropriate evidence
to disprove the opinion of the handwriting expert. That apart,
Section 73 of the Indian Evidence Act empowers the Court to
compare the admitted and disputed writings for the purpose of
forming its own opinion. Based on the sole opinion of the
handwriting expert, the FIR ought not to have been registered.
Continuation of FIR No.I-194/2016, in our view,
would amount to abuse of the process of Court and the petition filed
by the appellants under Section 482 Crl.P.C. in Criminal Misc.
Application No.2735/2017 to quash the FIR I-194/2016 is to be
allowed.
20. The High Court, in our view, erred in quashing the criminal
case in C.C.No.367/2016 filed by appellant No.3-Hasmukhbhai
under Section 138 of N.I. Act. As pointed out earlier, Yogeshbhai
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has admitted the issuance of cheques. When once the issuance of
cheque is admitted/established, the presumption would arise under
Section 139 of the N.I. Act in favour of the holder of cheque that is
the complainant-appellant No.3. The nature of presumptions under
Section139 of the N.I. Act and Section 118(a) of the Indian
Evidence Act are rebuttable. Yogeshbhai has of course, raised the
defence that there is no illegally enforceable debt and he issued the
cheques to help appellant No.3-Hasmukhbhai for purchase of lands.
The burden lies upon the accused to rebut the presumption by
adducing evidence. The High Court did not keep in view that until
the accused discharges his burden, the presumption under Section
139 of N.I. Act will continue to remain. It is for Yogeshbhai to adduce
evidence to rebut the statutory presumption. When disputed
questions of facts are involved which need to be adjudicated after
the parties adduce evidence, the complaint under Section 138 of
the N.I. Act ought not to have been quashed by the High Court by
taking recourse to Section 482 Cr.P.C. Though, the Court has the
power to quash the criminal complaint filed under Section 138 of the
N.I. Act on the legal issues like limitation, etc. Criminal complaint
filed under Section 138 of the N.I. Act against Yogeshbhai ought not
have been quashed merely on the ground that there are inter se
dispute between appellant No.3 and respondent No.2. Without
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keeping in view the statutory presumption raised under Section 139
of the N.I. Act, the High Court, in our view, committed a serious error
in quashing the criminal complaint in C.C.No.367/2016 filed under
Section 138 of N.I. Act.
21. In the result, the impugned order is set aside and these
appeals are allowed. Criminal Misc. Application No.2735/2017 filed
by the appellants is allowed and the FIR No.I-194/2016 is quashed.
Criminal Misc. Application No.24588/2017 filed by Yogeshbhai
Muljibhai Patel stands dismissed. Case filed by appellant No.3-
Hasmukhbhai Ravjibhai Patel under Section 138 of N.I. Act –
C.C.No.367/2016 stands restored. The 5 th Additional Civil Judge &
JMFC, Bharuch is directed to proceed with the case in
C.C.No.367/2016 filed under Section 138 of N.I. Act and afford
sufficient opportunity to both the parties and dispose the same in
accordance with law. The Summary Suit No.105/2015 shall be
proceeded in accordance with law without being influenced by any
of the views expressed by the High Court in the impugned order.
..…………………….J.
[R. BANUMATHI]
..…………………….J.
[A.S. BOPANNA]
New Delhi;
February 10, 2020.
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