Gujarat High Court
Ritaben Harendrabhai Mehta vs State Of Gujarat on 12 June, 2024
NEUTRAL CITATION
R/CR.MA/14313/2022 ORDER DATED: 12/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 14313 of 2022
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RITABEN HARENDRABHAI MEHTA
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR DEEP D VYAS(3869) for the Applicant(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2
MR HK PATEL, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 12/06/2024
ORAL ORDER
1. By way of this application under Section 482 of the Code of
Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C."),
the applicant has prayed to quash and set aside the proceedings
of Criminal Case No.2221 of 2022, pending in the Court of 10 th
Additional Chief Judicial Magistrate (Special Negotiable Court),
Jamnagar and all the consequential proceedings arising
therefrom.
2. None appears for the respondent No.2, though duly served.
3. The complainant has filed a complaint under the
provisions of Section 138 of the Negotiable Instruments Act,
alleges that the complainant advanced an amount of Rs. 2 Lacs
to Mehta Developers (a partnership firm) by way of cash as a
hand loan on 8.01.2021. The complaint further alleges that a
NEUTRAL CITATION
R/CR.MA/14313/2022 ORDER DATED: 12/06/2024
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cheque dated 27.12.2021, issued on behalf of Mehta Developers
and signed by the accused number 2-Harendra Chamanlal
Mehta as its authorized signatory, was dishonored due to
insufficient funds, which led to the present complaint.
4. Learned advocate for the applicant submits that the
petitioner was the erstwhile partner of the partnership firm
'Mehta Developers,' from which she retired effective 30.05.2021.
Pursuant to this, the entry was recorded on 10.06.2020. It is
submitted that, having retired, the applicant is not connected
with the business and is not even an authorized signatory, as
evidenced by documentation issued by the drawee bank.
According to Section 138 of the Negotiable Instruments Act, only
the person who has drawn the cheque on an account maintained
by him can be prosecuted.
5. Learned APP appearing for the state has opposed the
application and submits that the applicant has directly involved
in the offence and therefore, the application be dismissed.
6. Having heard learned advocates on both the sides and
considering the documents on record, it appears that respondent
No. 2 has filed a complaint against three accused persons,
wherein the present applicant is arraigned as accused No. 3. In
the complaint it is alleged that the complainant advanced an
amount of Rs. 2 Lacs to Mehta Developers (a partnership firm) as
a hand loan in cash on 08.01.2021. The complaint further
alleges that a cheque dated 27.12.2021, issued on behalf of
NEUTRAL CITATION
R/CR.MA/14313/2022 ORDER DATED: 12/06/2024
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Mehta Developers and signed by accused No. 2, Harendra
Chamanlal Mehta, as its authorized signatory, was dishonored
due to insufficient funds. The present applicant is a partner of
the firm and engaged in its day-to-day affairs; however, no other
allegations are leveled against the present applicant. Accused
No. 2 signed the cheque as the authorized signatory, whereas the
present applicant was not the drawer of the cheque. A notice was
issued wherein it is accepted that respondent No. 3 was a
partner of the firm, but no other role of the present applicant is
revealed from the notice.
7. After perusing the documents at Annexure-B, it appears
from Form G issued by the Registrar of Firms, Deputy
Commissioner of State Tax, that the applicant was a partner of
the firm. The present applicant joined as a partner in the firm on
3rd July, 2011, and retired effective 31 st May, 2020. The
impugned cheque was issued on 27th December, 2021, which
obviously happened after the retirement of the applicant. The
retirement date of the present applicant has also been produced
on record.
8. In view of the above, it appears that on the date issuing
cheque, the petitioner had retired and thus she was neither a
signatory nor a drawer, nor did she maintain any account of the
firm, and had no involvement in issuing the cheque. In the add
of Section 141 of the NI Act, process issued against the petitioner
appears to be bad in law. In this regard, this Court deems it
proper to refer to the judgment passed by the Hon'ble Apex
Court in the case of Susela Padmavathy Amma v. M/s. Bharti
NEUTRAL CITATION
R/CR.MA/14313/2022 ORDER DATED: 12/06/2024
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Airtel Ltd., reported in 2024 OnLine (SC) 311, wherein the Court
held that the director of a company cannot be held liable for the
dishonor of a cheque. Additionally, in the case of Siby Thomas v.
Somany Ceramics Ltd., reported in (2024) 1 SCC 348, the
Hon'ble Apex Court held that vicarious liability would be
attracted only when the ingredients of Section 141(1) are
satisfied. Further, merely because someone is managing the
affairs of the company, per se, they do not become in charge of
the conduct of the business of the company or the person
responsible to the company for the conduct of its business. Only
the person who, at the time the offence was committed, was in
charge of and responsible to the company for the conduct of its
business, along with the company, shall be deemed guilty of the
offence and shall be liable to be proceeded against and punished.
9. In the result, the application is allowed. The impugned
complaint being Criminal Case No.2221 of 2022, pending in the
Court of 10th Additional Chief Judicial Magistrate (Special
Negotiable Court), Jamnagar and all the consequential
proceedings arising therefrom as well as all consequential
proceedings initiated in pursuance thereof are hereby quashed
and set aside qua the applicant herein only. Rule is made
absolute. Direct service is permitted.
(HASMUKH D. SUTHAR,J)
ALI
