Gujarat High Court
Ram Vithoba Shanbhag vs State Of Gujarat on 17 January, 2024
NEUTRAL CITATION
R/CR.MA/15713/2021 ORDER DATED: 17/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 15713
of 2021
In R/CRIMINAL APPEAL NO. 1239 of 2021
With
R/CRIMINAL APPEAL NO. 1239 of 2021
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RAM VITHOBA SHANBHAG
Versus
STATE OF GUJARAT
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Appearance:
MR PRAVIN GONDALIYA(1974) for the Applicant(s) No. 1
MR DHRUV K DAVE(6928) for the Respondent(s) No. 2
MS JIRGA JHAVERI APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 17/01/2024
ORAL ORDER
Order in R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO
APPEAL) NO. 15713 of 2021
Learned advocate, Mr.Pravin Gondaliya, submits that
lengthy cross examination of the complainant running around 30
pages was conducted by the respondent-accused to create
confusion on the aspect that whether the amount was lended in
cash or cheque. Learned advocate draws the attention of this
Court with regard to the complaint and the chief examination
wherein the complainant had clarified that due to the non
conversant of the Gujarati language, in the notice, by mistake, it
was mentioned that the amount was lended in cash. Learned
advocate submits that the judgment and order of acquittal was
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R/CR.MA/15713/2021 ORDER DATED: 17/01/2024
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passed on 3 grounds, viz. (a) That the firm of the accused which
is the proprietorship firm was not joined as a party; (b) The Civil
Suit is filed before the learned Court at Mumbai and (c) That the
complainant stated inconsistent version with regard to lending
the amount in cash or cheque in notice, complaint, during the
chief examination and in cross examination.
Learned advocate submits that complainant was not having
knowledge of the Gujarati language and the respondent-accused
tried to get the advantage of the same and created lot of
confusion by putting the same questions in one way or of other
way. Learned advocate relies on the decision of the Hon'ble Apex
Court in the case of Raghu Lakshminarayanan V/s. Fine
Tubes reported in (2007) 5 SCC 103 wherein, it was held as
under:
"The concept of vicarious liability was introduced in
penal statutes like the Negotiable Instruments Act
to make the Directors, partners or other persons, in
charge of and control of the business of the
company or otherwise responsible for its affairs, the
company itself being a juristic person. A juristic
person can be a company within the meaning of the
provisions of the Companies Act, 1956 or a
partnership within the meaning of the provisions of
the Partnership Act, 1932, or an association of
persons which ordinarily would mean a body of
persons which is not incorporated under any
statute. A proprietary concern, however, stands
absolutely on a 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. A proprietary
concern would not answer the description of either
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R/CR.MA/15713/2021 ORDER DATED: 17/01/2024
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a company, Incorporated under the Companies Act
or a firm within the meaning of the provisions of
Section 4 of the Partnership Act.
The term 'Director' has been defined, and so, other
than a person who comes within the purview
thereof, nobody else can be prosecuted by way of
his vicarious liability in such a capacity. If the
offence has not been committed by a company, the
question of there being a Director or his being
vicariously liable, therefore, would not arise".
Learned advocate further submits that the suit which is
filed before the learned trial Court, Mumbai, wherein also, the
respondent-accused is one of the party and therefore, there is no
ground to disbelieve the case of the complainant in absence of
rebuttal of the presumption, which is in favour of the
complainant under Sections 118 and 139 of the Negotiable
Instruments Act.
In view of above, this Court deems it fit to allow this
application seeking leave to prefer an appeal. Hence, this
application is allowed.
Order in R/CRIMINAL APPEAL NO. 1239 of 2021
ADMIT.
Mr.Dhruv Dave, learned advocate waives service of notice
of admission on behalf of Respondent No.2 and Ms.Jirga Jhaveri,
learned APP waives service of notice of admission on behalf of
Respondent-State.
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R/CR.MA/15713/2021 ORDER DATED: 17/01/2024
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Record and proceedings be called for from the Court below.
Matter be listed as per seriatim.
(M. K. THAKKER,J)
ASHISH M. GADHIYA
