Umang Agarwal vs State of Gujarat & Anr.

Vimal K. Vyas, J

By way of preferring the present application under Section 482 of the Code of Criminal Procedure, 1973, the applicant has prayed to quash and set-aside the proceedings of the Criminal Case No.1711 of 2016 pending before the learned Additional Chief Metropolitan Magistrate, Court No.30, Ahmedabad, for the offences under Section 138 read with Sections 141 and 142 of the Negotiable Instruments Act.

Though served, the respondent no.2 has chosen not to appear before this Court either in person or through an advocate.

Heard learned advocate Mr.Kunal P.Vaishnav for the applicant and learned APP Mr.Ronak Raval for the respondent – State.

The brief facts giving rise to the present petition can be summarised as under :

4.1. The respondent no.2 herein is the original complainant who filed the complaint under Section 138 read with Sections 141 and 142 of the Negotiable Instruments Act against the accused no.1 Rohilkand Medical Store, a proprietary firm; and accused no.2 Mr.Umang Agarwal, proprietor of the firm Rohilkand Medical Store. It is the say of the complainant that the accused no.2 (present applicant) is the proprietor of the accused no.1 firm and is looking after the day-to-day affairs of the firm. As per the say of the complainant, the present applicant had issued a cheque bearing No.422158 dated 9th March 2016 for the sum of Rs.26,51,643=00 of the Oriental Bank of Commerce for the legal dues of the accused no.1 firm. The complainant had presented the said cheque for encashment in its bank and the same was returned on 11th April 2016 with an endorsement ‘payment stopped by drawer’. After issuing the statutory notice and after complying with the procedure prescribed under law, the respondent no.2 filed the complaint under Section 138 read with Sections 141 and 142 of the Negotiable Instruments Act against the accused no.1 firm and accused no.2 proprietor, i.e. the present applicant, in the court of learned Additional Chief Metropolitan Magistrate, Court No.30, Ahmedabad.

Learned advocate Mr.Vaishnav for the applicant has submitted that in the complaint, the complainant has arraigned the present applicant as the accused no.2 only in the capacity as the proprietor of the firm and as the signatory of the cheque. In this regard, learned advocate has submitted that, in fact, the applicant is neither the proprietor of the firm nor he is the signatory of the cheque.

While referring to the certificate of registration, certificate of renewal of license of drugs, PAN card and the statement of trading and profit & loss of the firm for the year 2017 as well as the cheque in question, learned advocate Mr.Vaishnav has submitted that in all the aforesaid documents, the name of the proprietor of the firm is mentioned as ‘Anilkumar Agarwal’, who is the father of the present applicant. It is submitted that the cheque in question has also been signed by the father of the present applicant and the applicant has nothing to do with the business or the activity carried out by the accused no.1 firm. It is submitted that the present applicant is not even remotely connected with the alleged offence and continuation of proceedings against him would amount to abuse of process of law. Thus, it is urged that the present petition is required to be allowed as no case is made out against the present applicant.

Taking into consideration the submissions canvassed by the learned advocate for the applicant and for the adjudication of the issue involved, this Court thought it fit to call for the records from the trial court and the same is produced before the Court.

Having heard the learned advocate for the applicant and learned APP for the respondent State and having considered the documentary evidence as referred to herein above, it appears that in the complaint filed under Section 138 read with Sections 141 and 142 of the Negotiable Instruments Act before the learned Magistrate, the present applicant has been arraigned as the accused no.2 in the capacity of the proprietor of the accused no.1 firm. It is alleged that the applicant, as the proprietor of the firm, had signed and issued the cheque in question in favour of the complainant on 9th March 2016, which was presented by the complainant in its bank and the same was returned on 11th March 2016 with the endorsement ‘payment stopped by drawer’. However, considering the certificate of registration of the firm and the license of drugs, it appears that the name of the proprietor is mentioned as ‘Anilkumar Agarwal’, who is the father of the present applicant. It also appears from the record that the cheque in question has also been signed by Mr.Anilkumar Agarwal as the proprietor of Rohilkand Medical Store (i.e. the accused no.1) and not by the present applicant. It transpires from the record that the complainant, i.e. the respondent no.2 herein, had filed an application under Section 319 of the Code of Criminal Procedure at Exh.8 before the learned Magistrate contending, inter alia, that at the time of filing of the complaint, the complainant did not have knowledge that the accused no.2, i.e. the present applicant, is not the signatory of the cheque. It is contended in the said application that after service of the summons, the present applicant had sent an email on 10th December 2021 to the complainant and also sent the certificate of licence of drugs, which suggests that the accused no.2, i.e. the present applicant, is not the owner of the accused no.1 firm. It is specifically admitted by the complainant that instead of filing the complaint against the proprietor and the signatory of the cheque, i.e. Mr.Anilkumar Agarwal, it has been filed against the present applicant. It is interesting to note that in the aforementioned application Exh.8, the complainant has prayed before the learned Magistrate to join the original proprietor as the accused, however, he has not prayed to recall the process issued against the present applicant, which seems to be highly improper.

Considering the aforesaid, it becomes clear that the present applicant is neither the proprietor of the accused no.1 firm nor he is the signatory of the cheque in question. The complainant has, without taking due care and without verifying the documents, arraigned the present applicant as the accused, which is sheer misuse of the process of law.

On the facts and in the circumstances of the case, this Court is convinced that the implication of the present applicant in the complaint would amount to misuse of process of law. It is well-settled that the power under Section 482 of the Code of Criminal Procedure should be exercised by the High Court to prevent abuse of process of any court or otherwise to secure the ends of justice. It is also a duty of the Constitutional court to see that the criminal proceedings should not be encouraged when it is found mala fide or otherwise abuse of process of law.

For the aforesaid reasons, the case on hand is squarely covered by the guidelines as enumerated by the Apex Court in the case of State of Haryana and others vs. Bhajan Lal and others, reported in AIR 1992 SC 604, and therefore, this Court is of the opinion that the continuation of the criminal proceedings against the present applicant would merely be an abuse of process of law.

In the result, the petition succeeds and the same is hereby allowed. The proceedings of the Criminal Case No.1711 of 2016 pending before the learned Additional Chief Metropolitan Magistrate, Court No.30, Ahmedabad, for the offences under Section 138 read with Sections 141 and 142 of the Negotiable Instruments Act as well as all other consequential proceedings initiated in pursuance thereof are hereby quashed and set-aside qua the applicant herein. Rule made absolute. Direct service is permitted.