In this appeal, appellant No.1 Rajeshbhai is represented through his Power of Attorney holder appellant No.2 Vipulkumar Hasmukhbhai Patel.
Yogeshbhai who is residing in United Kingdom showed his intention to companye 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.
12.10.2015 8109 NRO Account Rs.30,00,000/ 12.10.2015 No.08540107512 3.
In 2010, in order to sell his fathers land, Yogeshbhai called up appellant No.3 who is also the maternal uncle of Yogeshbhai and Rajeshbhai.
Signature Not Verified Digitally signed by Brief facts which led to the filing of these appeals are as MADHU BALA Date 2020.02.10 164229 IST Reason under Appellant No.1 Rajeshbhai Muljibhai Patel is the real brother of Yogeshbhai Muljibhai Patel who is the accused in C.No.367/2016 filed under Section 138 of N.I. Act by appellant No.3 Hashmukhbhai Ravjibhai Patel.
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.
Dishonour 1.
In the said suit, Yogeshbhai, his mother Kanchanben, respondent No.2 Mahendrakumar and Jigneshbhai were arraigned as defendants.
Application No.2735/2017.
Alleging that the appellants have forged and fabricated the four receipts, respondent No.2 Mahendrakumar has filed the companyplaint for cheating and forgery against the appellants.
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.
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.
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.
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.
It was only thereafter, respondent No.2 Mahendrakumar had filed the criminal companyplaint dated 20.03.2016 and also filed another criminal companyplaint dated 14.04.2016 against appellant No.1 Rajeshbhai and appellant No.2 Vipulkumar.
According to the respondents, they came to know about those four receipts only after they have been served with summons in the said suit.
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.
The handwriting experts report was received in the Court on 15.12.2016 to the effect that all the four receipts were number signed by respondent No.2 Mahendrakumar.
Yogeshbhai claimed that he has given the cheques to appellant No.3 Hasmukhbhai who approached him requesting for help to purchase land.
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.
The said suit was companypromised between appellant No.1 and Yogeshbhai in London and Yogeshbhai was to pay Rs.90,00,000/ to Rajeshbhai appellant No.1.
The Court in that case has issued summons for appearance against Yogeshbhai and Mahendrakumar which has been served on 01.11.2015.
Accordingly, Yogeshbhai had companye 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.
Based on the said companyplaint, FIR No.
It was thereafter on the companyplaint filed by respondent No.2, FIR No.
30.10.2015 20801 NRE Account Rs.30,00,000/ 30.10.2015 No.085401000566 4.
On 06.09.2016, the Court of 5 th Additional Civil Judge JMFC, Bharuch issued a bailable warrant for production of accused Yogeshbhai.
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.
The companyplaint therefore, pertains only for cheque Nos.20801 and 20802 of NRE Account No.085401000566 which were returned unpaid on 30.10.2015.
The High Court referred to the hand writing experts opinion who has opined that the signatures found in the receipts do number tally with the signature of respondent No.2 Mahendrakumar.
Appellant No.1 agreed to issue NOC and promised that his power of attorney holder appellant No.2 Vipulkumar Hasmukhbhai Patel will issue NOC.
Ltd. for Rs.6,16,44,000/ .
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.
As per appellant No.3, at the time of issuance of cheques, Yogeshbhai gave assurance of the clearance of above cheques.
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 companysideration of the sale deed, the land owner was to receive Rs.6,16,44,000/ and the companyfirming party Jigneshbhai was to receive Rs.1,13,94,000/ .
In 2015, accused Yogeshbhai came to India and arranged meeting with appellant No.3.
Application No.2735/2017 before the High Court under Section 482 Cr.
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/ .
Special Summary Suit No.105/2015 and criminal case in C.No.367/2016 filed under Section 138 of N.I. Act are pending before the companypetent companyrt and while so, the criminal case companyld number have been registered on the four receipts which are the subject matter of the pending litigations between the parties.
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.
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.
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.
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.
Summary Suit No.105/2015 filed by appellant No.3 was based on the four receipts issued by respondent No.2 Mahendrakumar.
Thereafter, appellant No.3 sent a legal numberice to Yogeshbhai on 17.11.2015 demanding payment of money which numberice was delivered on 23.11.2015.
I 194/2016 was registered against the appellants under Sections 406, 420, 465, 467, 468, 471 and 114 IPC.
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/ .
Yogeshbhai alleged that the appellants have forged the receipts issued by respondent No.2 Mahendrakumar.
By the same order, the High Court has allowed Criminal Misc.
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 No.
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.
Yogeshbhai who is the accused in the criminal case being C.C.No.367/2016 also filed Criminal Misc.
Being aggrieved, the appellants have filed these appeals.
Application No.2735/2017, the Criminal Misc.
Ltd. thereby, selling the above referred lands to that companypany which was agreed to be sold to appellant No.3.
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.
Dabhoi, District Vadodara.
Since the police had number 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.
Application No.24588/2017 for quashing of cheque case filed against him 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.
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.
The Complainant issued numberice 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.
Date Cheque Account Amount Date of No.
After issuing the legal numberice, appellant No.3 Hasmukhbhai filed criminal case in C.No.367/2016 on 08.12.2015 pertaining to two cheques bearing Nos.20801 and 20802.
Accordingly, appellant No.3 gave Rs.30,00,000/ each on four days viz.
In the sale deed, the agreement to sale holder has signed as companyfirming party.
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.
Yogeshbhai is the elder brother of appellant No.1 Rajeshbhai.
These appeals arise out of the impugned judgment dated 14.12.2018 passed by the High Court of Gujarat at Ahmedabad dismissing Criminal Misc.
BANUMATHI, J. Leave granted.
Complaint under Section 138 of N.I. Act against Yogeshbhai was taken on file on 05.02.2016 in C.No.367/2016.
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.No.367/2016 filed under Section 138 of N.I. Act.
12.10.2015 8108 NRO Account Rs.30,00,000/ 12.10.2015 No.08540107512 2.
There was various companyrespondence between the parties and the companypany M s Brentwood Industries India Pvt.
Respondent Yogeshbhai is represented through his Power of Attorney holder another respondent Mahendrakumar Javaharbhai Patel.
Application No.24588/2017 filed by Yogeshbhai was allowed and the criminal case in C.No.367/2016 filed by appellant No.3 Hasmukhbhai under Section 138 of N.I. Act was quashed.
Ltd. regarding payment of said Rs.90,00,000/ .
On the basis of order passed in Criminal Misc.
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.
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.
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.
Both appellant No.1 Rajeshbhai and his brother Yogeshbhai are stated to be residents of United Kingdom.
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.
