Bombay High Court
Vicky Madanmohan Gupta vs State Of Maharashtra And Anr on 29 November, 2023
Author: Sarang V. Kotwal
Bench: Sarang V. Kotwal
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION (ST) NO. 20889 OF 2023
Vicky Madanmohan Gupta ..Petitioner
Versus
State of Maharashtra & Anr. ..Respondents
__________
Mr. Yashpal Thakur i/b. Girish Kedia a/w. Krushang Kedia for
Petitioner.
Mr. Arfan Sait, APP for State/Respondent No.1.
__________
CORAM : SARANG V. KOTWAL, J.
DATE : 29 NOVEMBER 2023
PC :
1. The Petitioner is the original accused No.3 in Case
No.940/SC/2023 pending before the Metropolitan Magistrate, 56 th
Court, Mazgaon, Mumbai. The learned Magistrate vide order dated
17.08.2023 issued process against the petitioner and other two
accused U/s.138 of the Negotiable Instruments Act. The petitioner
challenged that order before the Additional Sessions Judge,
Greater Mumbai, vide Criminal Revision Application No.859 of
2023. That Revision application was dismissed vide order dated
18.10.2023. Thereafter the petitioner has preferred the present
writ petition.
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2. The Respondent No.2 as the original complainant had
filed the complaint against M/s. Global Advertisers, Sanjeev Gupta
and the present petitioner. The accused No.1 M/s. Global
Advertisers was described as a Proprietary concern and it was
specifically mentioned in the complaint that the accused No.2
Sanjeev Gupta was the Proprietor and the present petitioner was
an authorized signatory of M/s. Global Advertisers. The
proprietorship concern obtained loan of Rs.25 lakhs in the year
2019. In repayment of loan amount, a cheque dated 31.05.2023
for Rs.23 lakhs drawn on HDFC Bank Ltd., Borivali branch was
issued. The cheque was signed by the present petitioner as the
authorized signatory of the accused No.1. That cheque was
dishonoured. After following due procedure the complaint was
lodged.
3. Learned counsel for the petitioner submitted that, in the
case of proprietorship concern, only the proprietor can be held
liable for the offence U/s.138 of the Negotiable Instruments Act.
Admittedly, the account was maintained by the said proprietorship
concern. The petitioner was the authorized signatory, but that will
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not bring him within the purview of Section 138 of the N.I. Act,
because the account was not maintained by him.
4. Learned counsel relied on the Judgment of the Hon'ble
Supreme Court in the case of Raghu Lakshminarayanan Vs. Fine
Tubes, decided on 05.04.2007, in Criminal Appeal No.485 of 2007.
He relied on the observations in paragraph-8 of the said Judgment;
wherein, it was observed that the proprietary concern stands on
different footing. A person may carry on business in the name of a
business concern, but he being proprietor thereof would be solely
responsible for conduct of its affairs. A proprietary concern is not a
company. Learned counsel, therefore, submitted that a proprietary
concern is differentiated from a company and a partnership firm
and, therefore, the concept of vicarious liability cannot be applied
in the case of the present petitioner.
5. Considering these submissions, it is necessary to hear the
other side. Learned counsel for the petitioner has made out a case
for grant of ad-interim relief.
6. Hence, the following order:
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ORDER
i) Issue Notice to the Respondent No.2, returnable
on 07.02.2024.
ii) Stand over to 07.02.2024.
iii) Till then, there shall be ad-interim relief in terms
of prayer clause (c).
(SARANG V. KOTWAL, J.)
