H.H.MEHTA - (1.) This is a group of 30 Criminal Misc. Applications filed under Sec. 482 of the Code of Criminal Procedure, 1973 (for short "Cr.P.C.") by the petitioner -original accused No.3 - Priti Manoj Bhojnagarwala who happens to be the wife of accused no.2 Manoj Jagdishbhai Bhojnagarwala, with a request to quash and set aside the respective complaints filed by Shri Priyakant R. Parikh in his individual capacity as well as the Karta of his Hindu Undivided Family and also by his close near relative, as stated in Annexure : I which will be a part and parcel of this Judgment.
(2.) With the consent of the learned advocates for both the parties, these 30 Criminal Misc. Applications are taken up for final hearing in a group and as the common questions of law and facts are involved in this group of 30 Criminal Misc. Applications, they are disposed of by this one common Judgment.
(3.) Common facts leading to this group of 30 Criminal Misc. Applicaions in a nutshell are as follows. The facts stated hereinbelow are taken from the complaint of Criminal Case No. 3432 of 1998 which is sought to be quashed in (Main) Criminal Misc. Application No. 4188 of 1999. 3.1 The complainant whose complaint is sought to be quashed which is filed as Private Complaint in the Court of the learned Metropolitan Magistrate, Court No.4, Ahmedabad (who will be referred to hereinafter as the learned Magistrate for the sake of convenience) and as per the complaint of Criminal Case No. 3432 of 1998 which is sought to be quashed by preferring Criminal Misc. Application No. 4188 of 1999, Accused no.1 is Nidhi Investments ( Private Firm ). Accused nos. 2 and 3 are the partners in that firm i.e. accused no.1. Accused no.2 is a husband of accused no.3. 3.2 Complainant's sister's daughter has married with one Yogendra Jagdishbhai Bhojnagarwala who happens to be the younger brother of accused no.2 Manoj Bhojnagarwala and there have been family relations between accused nos. 2 and 3 and complainant since long. As per the case of complainant, Nidhi Investments (Private Firm) started to function and carry on its business with effect from 27/6/1992. 3.3 As stated in Para 3 of the complaint, accused nos. 2 and 3 both had jointly represented to the complainant through their good offices of Yogendra Jadjishbhai with whom the daughter of complainant's sister has married as well as their (Majoj and Yogendra's) parents namely Jagdishbhai and Sulochnaben, that Nidhi Investment i.e. accused no.1 handles all portfolio of shares and finances in the most successful way and the complainant being the relative should entrust both these aspects i.e. portfolios of shares as well as finances/deposit management to Nidhi Investments and the parents had orally guaranteed safety and security of the same. 3.4 As stated in Para 4 of the complaint, during the period from 20/12/1997 to 10/9/1998, the complainant Shri Priyakant R. Parikh advanced his deposits to the tune of Rs. 2,03,00,000.00 by different cheques to the Nidhi Investments. The particulars of aforesaid deposits are stated in Para 4 of the complaint. It is the case of the complainant that a large amount of money was advanced as deposits on various dates, to the accused and accused nos. 2 and 3 represented to the complainant that all the members of the family are concerned (connected) with Nidhi Investment, and therefore, accused no.2 Manoj is authorised to sign as Authorised Signatory, and therefore, the complainant had no reason to suspect the malafide of any of the accused. 3.5 As stated in Para 5(A) of the complaint, the accused were paying back the amounts as well as interest to the complainant. As per particulars given in Para 5(A) of the complaint, the accused returned a total amount of Rs. 1,05,00,000.00 towards the principal amount during the period from 4/4/1998 to 16/9/1998 by 12 different items. It is also the case of the complainant that accused have paid in all Rs. 1,02,25,500.00 towards interest to the complainant by different 38 items. 3.6 It is further the case of the complainant that the complainant has advanced an amount of Rs. 2,03,00,000/- to accused and as against that amount, the complainant has received back a total amount of Rs. 1,17,25,500/- inclusive of the interest. Thus, the complainant has a right to recover an amount of Rs. 85,74,500/- from the accused for which the accused has issued different cheques of which particulars are given in Annexure I. As that cheques have been bounced without they being honoured, a notice was issued and the reply was expected from the accused. The complainant received a reply from the accused in vague manner. As per the case of the complainant, by that reply, the accused have attempted to settle the amount of interest paid by them, to the complainant as principal amounts which also establishes an intention of the accused to deceive the complainant by luring him to finance the funds. 3.7 As per the case of the complainant, the deposits were given way back in the year 1997 and accused had agreed to pay the agreed rate of interest on the same because that would be the common procedure of the market. 3.8 Accused are required to pay an amount of Rs. 85,74,500/- for clearance of debt for which accused have issued various cheques of various dates. Because of the representations of the accused, different cheques of different dates came to be presented by the complainant on particular dates, because of the promises of the accused of arrangement of clearance. One of the cheques issued by the accused is the subject matter of Criminal Case No. 3432 of 1998 for which the notice dated 5/11/1998 has been issued. The complainant received a vague reply from the accused. By reply, accused have neither admitted their liabilities, nor did they deny the same. It is the case of the complainant that the accused have committed an offence punishable under Sec. 138 of the Act. 3.9 As stated in Para 7 of the complaint, it is a defence of the accused that Nidhi Investment is a proprietory firm and none of the accused named in the cause title of complaint have nothing to do with that firm. This stand of the accused No.2 Manoj Bhojnagarwala is highly unreasonable and unacceptable because said Manoj Bhojnagarwala had issued a cheque as an Authorised Signatory of Nidhi Investment. That cheque has been annexed as Annexure : A with the complaint. 3.10 The fact that Manoj Bhojnagarwala issued cheques in two different capacities, establishes design of family of accused to cheat the family of the complainant and the complainant himself. As stated in sub-para 2 of Para 7 of the complaint, the total amount of Rs. 2.5 crores remains outstanding from the family of the accused and the family of the accused has now decided to invite the complainant for legal battle rather than settlement of legal debts because the accused Manoj Bhojnagarwala has conveyed to the complainant that the convictions are hard to be earned and difficult to be implemented. This message has shocked the complainant to the extent that the complainant was required to consult the Advocate for the return of the cheques. 3.11 As stated in Para 9 of the complaint, in all nine numbers of cheques returned with endorsement that accused have failed to make funds available for the clearance of the cheques. For each and every cheque, complainant therefore got issued distinct and separate notice calling upon the accused to comply with requirements of Section 138 of the Negotiable Instruments Act, 1881 (for short "the Act"). The accused have failed to comply with the notice. 3.12 As stated in Para 10 of the complaint, Sec.118 of the Act provides for presumption of legal dues in event of issuance of the cheque unless specifically denied. It is in this view that accused cannot claim non-compliance to the provisions of the Act and since they cannot claim non-compliance, they are liable for the prosecution under Sec. 138 of the Act. 3.13. As stated in Para 11 of the complaint, a reply of the accused establishes their intention to misguide even the learned advocate consulted by them for the purposes of reply. The reply clearly establishes that accused Manoj Bhojnagarwala has not briefed the learned advocate replying the notice and has not brought to the notice of the learned advocate a fact that Shri Manoj Bhojnagarwala has issued the cheque as an Authorised Signatory of Nidhi Investments and on receipt of such reply, on the basis of belief, the complainant has been misled by the learned advocate to believe and trust the words of the accused that Nidhi Investment is a private firm. This establishes that the accused are capable of misguiding their own advocate and are the persons who have misguided their relations namely the complainant and his family members. 3.14 As stated in Para 12, Criminal Case No. 3432 of 1998 has been filed for cheque No. 50142 dated 23/10/1998 for Rs.40,000.00. That cheque was drawn on the Bank namely Textile Traders Co-operative Bank, New Cloth Market Branch, Ahmedabad. This cheque was deposited by the complainant as per the instruction of the accused and the same has been returned as uncleared because the Bankers of the accused informed the Bankers of the complainant that the accused have failed to arrange for the funds necessary for clearance of the cheque. 3.15 In reply, the accused have nowhere stated as to how and where they will fulfil the promises made by them by issuance of a Negotiable Instrument i.e. cheque. This establishes prima facie an offence punishable under Sec. 138 of the Act. 3.16 As stated in Para 15 of the complaint, as accused have misguided the complainant, the accused have committed offences of sharing common intention to cheat and/or abatement to cheat the complainant. 3.17 As stated in Para 16 of the complaint, before filing the complaint, the complainant addressed a legal notice as required by the provisions of the Act to the accused within the time prescribed by the Act. Accused have replied that notice within the time prescribed by the Act. Considering the fact of issuance of the notice and the reply received from the accused, the complainant has stated that the complaint is filed within the time and within the jurisdiction of the Court of the learned Magistrate and the cheques have been issued by accused from the Bankers stationed within the local jurisdiction of the Court of the learned Magistrate. 3.18 The complainant has stated specifically in Para 17 of the complaint that for the purpose of proving the charges levelled against the accused, the complainant wants to examine witnesses cited under caption "witnesses", and the complainant has sufficient documentary as well as oral evidence. 3.19. The complainant has cited four witnesses out of which one is the Bankers of the accused. Lastly in a prayer clause i.e. in Para 18, the complainant has requested the learned Magistrate to take up legal proceedings against the accused for offence punishable under Sec. 138 of the Negotiable Instruments Act as well as the offences punishable under Sec. 420 read with Sec.34 and/or read with Sec.114 of the I.P.Code. The complainant has produced certain documents along with a separate list on the date on which he filed the complaint. 3.20 On filing of this aforesaid private complaint by the complainant in the Court of the learned Magistrate, the learned Magistrate recorded a verification of the complainant as required to be recorded under Sec.200 of the Cr.P.C. On reading the complaint as a whole together with a verification of complainant on oath and the documents produced with said complaint, as it appears, the learned Magistrate came to a conclusion that there is a sufficient ground for proceeding and therefore, he took cognizance of offence punishable under Sec.138 of the Act. He passed an order to register the complaint of the complainant as Criminal Case and issue summon against the accused on payment of process fees for securing the presence of accused.;