Rajeshbhai Muljibhai Patel vs The State Of Gujarat on 10 February, 2020


Supreme Court of India

Rajeshbhai Muljibhai Patel vs The State Of Gujarat on 10 February, 2020

Author: 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,

8
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

9
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.

10

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

14
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

16
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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