Rajeshbhai Muljibhai Patel And Others Etc. vs State Of Gujarat And Another Etc.

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R. Banumathi, J",,,,,

Leave granted.,,,,,

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.,,,,,

Brief facts which led to the filing of these appeals are as under:-,,,,,

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.,,,,,

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 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.,,,,,

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 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.,,,,,

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 Drawerâ€. 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 Drawerâ€. 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.,,,,,

Insofar as dishonor of cheques bearing Nos.8108 and 8109 dated 12.10.2015 of NRO Account No.08540107512, they were 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 5th Additional Civil Judge & JMFC, Bharuch issued a bailable warrant for production of",,,,,

accused Yogeshbhai.,,,,,

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 1.11.2015. 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 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.",,,,,

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",,,,,

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/-.",,,,,

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-,,,,,

S.No.,Date,Cheque No.,Account,Amount,"D a t e of

Dishonour

1.,12.10.2015,8108,"N R O Account

No.08540107512","Rs.30,00,000/-",12.10.2015

2.,12.10.2015,8109,"N R O Account

No.08540107512","Rs.30,00,000/-",12.10.2015

3.,30.10.2015,20801,"N R E Account

No.085401000566","Rs.30,00,000/-",30.10.2015

4.,30.10.2015,20802,"N R E Account

No.085401000566","Rs.30,00,000/-",30.10.2015

Total,"Rs.1,20,00,000/-",,,,