Citation : 2024 Latest Caselaw 8711 Guj
Judgement Date : 17 September, 2024
NEUTRAL CITATION
R/CR.MA/16543/2019 CAV JUDGMENT DATED: 17/09/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION NO. 16543 of 2019
(FOR QUASHING & SET ASIDE FIR/ORDER)
With
R/CRIMINAL MISC.APPLICATION NO. 16545 of 2019
With
R/CRIMINAL MISC.APPLICATION NO. 1 of 2021
In
R/CRIMINAL MISC.APPLICATION NO. 16543 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI : Sd/-
=======================================================
1 Whether Reporters of Local Papers may be NO
allowed to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the
fair copy of the judgment ? NO
4 Whether this case involves a substantial
question of law as to the interpretation
of the Constitution of India or any NO
order made thereunder ?
=======================================================
KARAMSHI DALABHAI DESAI & ORS.
Versus
STATE OF GUJARAT & ANR.
=======================================================
Appearance:
MR MTM HAKIM for MR SAQUIB S ANSARI(7152) for the
Applicant(s) No. 1,2,3,4,5,6
MR MB GOHIL(2702) for the Respondent(s) No. 2
MR NS TAHILRAMANI(2576) for the Respondent(s) No. 2
MR JAY MEHTA APP for the Respondent(s) No. 1
=======================================================
CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 17/09/2024
CAV JUDGMENT
NEUTRAL CITATION
R/CR.MA/16543/2019 CAV JUDGMENT DATED: 17/09/2024
undefined
1. Rule. Learned advocates appearing for the parties waive service of notice of rule.
2. As the facts involved in both the petitions and parties are identical, with the consent of learned advocates appearing for the parties, both the petitions are heard together and disposed of by this common judgment and order.
3. For deciding both the petitions, the facts of Criminal Misc. Application No.16543 of 2019 are taken into consideration.
4. By way of preferring present petition under section 482 of the Code of Criminal Procedure, 1973, the petitioners applicants-original accused Nos.9 to 14, seek to invoke the inherent powers of this Court, inter alia, praying for the following main relief:
"(A) This Hon'ble Court may be pleased to quash the Criminal Case No.6364 of 2018 filed before the Hon'ble Judicial Magistrate First Class, Ahmedabad (Rural) for offence punishable under Section 138 of the Negotiable Instruments Act, 1881, qua the petitioners"
5. The case of the complainant can be summarized thus:
5.1. It is alleged in the Criminal Case No. 6364 of
NEUTRAL CITATION
R/CR.MA/16543/2019 CAV JUDGMENT DATED: 17/09/2024
undefined
2018 that the respondent No. 2 - complainant and his wife were owners and in possession of agricultural land of Account No. 377, Block - Survey No. 185 admeasuring 0-28-33 sq. mtrs. of Village Memnagar, Taluk Ghatlodia of District & Sub-District Ahmedabad-13 (City Taluka) (hereinafter referred to as "Suit Property No. 1") and agricultural land of Account No. 378, Block Survey No. 186/1 admeasuring 0-19-28 square meter of village Memnagar, Taluka Ahmedabad West, District & Sub-
District Ahmedabad-13 (City Taluka) and (hereinafter referred to as "the Suit Property No. 2"). It is further alleged that with the consent of respondent No. 2 - complainant and his wife, the original owners of the said suit properties sold it to petitioner Nos. 2 to 6 herein by executing 2 Registered Sale Deeds dated 12/11/2014 and 20/05/2016 respectively. Furthermore, it is alleged that even though the said 2 Registered Sale Deeds were executed for consideration of Rs. 2,79,00,000/- (Two Crores and Seventy Nine Lakhs) and Rs. 4,95,00,000/- (Rupees Four Crores and Ninety Five Lakhs), the actual amount of the land was Rs. 37,51,00,000/- (Rupees Thirty Seven Crores and Fifty One Lakhs) and for that an agreement was executed between respondent No. 2 - complainant and her wife and petitioner No. 1 herein. It is further alleged that out of the said amoutn of Rs. 37,51,00,000/- (Rupees Thirty Seven Crores and Fifty One Lakhs), Rs. 25,98,50,000/- (Rupees Twenty Five Crores Ninety Eight Lakhs and Fifty Thousand) is paid, whereas Rs. 11,50,00,000/- (Rupees Eleven Crores and Fifty Lakhs) is not paid. It is
NEUTRAL CITATION
R/CR.MA/16543/2019 CAV JUDGMENT DATED: 17/09/2024
undefined
further alleged that Shri Siddhivinayak Associates - A Registered Partnership Firm through their authorized signatory, original accused No. 6, issued 7 cheques of different amounts of total Rs. 11,50,00,000/- (Rupees Eleven Crores and Fifty Lakhs). It is alleged that the said cheques when deposited were dishonored and therefore, notice under section 138 of the NI Act was issued for one such dishonoured cheque on 06/06/2018 and the petitioners herein as well as other persons replied to the said notice on 28/06/2018. Thereafter, the complainant lodged criminal complainant which was numbered as Criminal Case No. 6364 of 2018 for dishonoured of a Cheque bearing No. 012375 of IDBI against the accused persons including the present petitioners.
6. Heard learned advocate Mr. M. T. M. Hakim assisted by learned advocate Mr. Saquib Ansari for the petitioners, learned APP Mr. Jay Mehta for respondent - State and learned advocate Mr. M. B. Gohil for respondent No.2 - original complainant.
7. Learned advocate Mr. M.T.M. Hakim assisted by learned advocate Mr. Saquib Ansari for the petitioners submits that following factual aspects are required to be considered so as to decide the present petitions:
(i) That for various relief/s including recovery of money as per the cheques and for cancellation of Registered Sale Deeds, the respondent No. 2-
NEUTRAL CITATION
R/CR.MA/16543/2019 CAV JUDGMENT DATED: 17/09/2024
undefined
complainant and his wife preferred suit, being Special Civil Suit No. 207 of 2018 before the learned Senior Civil Judge, Ahmedabad (Rural). Moreover, in the said proceedings, the respondent No. 2- complainant and his wife have impleaded the petitioner Nos. 1 to 6 herein as defendant Nos. 1 to 6 and the original owners of the land as defendant Nos. 7 to 21. Furthermore, the partners of the partnership firm - Shri Siddhivinayak Associates who are arraigned as original accused Nos. 1 to 8 in the present Criminal Case are not impleaded as party respondents in the said Suit and no relief's is sought against them.
(ii) That the Suit Property No. 1 - Agricultural land of Account No. 377 and Suit Property No. 2 - Agricultural land of Account No. 378 were originally owned by 2 group of persons, i.e., Defendant Nos. 7 to 15 and Defendant Nos. 16 to 21 respectively as impleaded in Special Civil Suit No. 207 of 2018. From
admeasuring 3388 square yards, it is claimed that the original owners, i.e., Defendant No. 7 to 15 in Civil Suit executed an agreement to sell dated 26/02/1996 for 2260 square yards in favour of Respondent No. 2- Complainant and 3 other persons. Moreover, it is further claimed that the Respondent No. 2- Complainant executed 3 agreements to sell dated 29/04/1996 in favour of other persons. It is also claimed that the original owners executed Agreement to Sell with one Subham Enterprises, a Partnership Firm. It is further
NEUTRAL CITATION
R/CR.MA/16543/2019 CAV JUDGMENT DATED: 17/09/2024
undefined
claimed that subsequently, the said Subham Enterprises, a Partnership Firm executed Agreement to Sell dated 19/11/2007 in favour of the Respondent No. 2- Complainant and his wife and 4 Others persons.
(iii) Similarly for land survey No. 186/1 - Suit Property No. 2, it is claimed that an Agreement to Sell dated 19/01/2001 for 1260 square meters out of 1928 square meters was executed by the original owners, i.e., Defendant Nos. 16 to 21 in the Suit in favour of wife of Respondent No. 2 i.e. Shrimati Kamuben Somabhai Desai.
(iv) Thereafter, the petitioner Nos. 2 to 6 herein intended to purchase the said lands being Land Survey No. 186/1 - Suit Property No. 2. In pursuance thereto, the wife of the Respondent No. 2 executed two documents viz., (i) Cancellation Deed cum Consent Agreement and Possession Deed and (ii) Assignment Deed, both dated 10/11/2014. Thereby, wife of Respondent No. 2 after taking consideration as mentioned in the said deeds, relinquished, assigned and transferred whatsoever right she had in the said land in favour of the original owners and thereafter, the original owners executed Registered Sale Deed dated 12/11/2014 Registered at Serial No. 2192 for the said land in favour of the Petitioner Nos. 2 to 6. In view thereof, the transaction of the land Survey No. 187 - Suit Property No. 2 is complete and the Petitioner Nos. 2 to 6 have become the owners and are in possession of the said
NEUTRAL CITATION
R/CR.MA/16543/2019 CAV JUDGMENT DATED: 17/09/2024
undefined
land Survey No. 187-Suit Property No. 2 and no other person has any right, title and interest in the said property.
(v) Similarly, Petitioner Nos. 2 and 3 intended to purchase the Land Survey No. 185 - Suit Property No. 1. Therefore, the Respondent No. 2- Complainant and his wife and 7 other persons executed Four documents viz.,
(i) 2 Cancellation Deeds cum Consent Agreements and Possession Deeds and (ii) 2 Assignment and Transfer Deeds, all dated 20/05/2016. Thereby, the Respondent No. 2- Complainant and his wife and seven other persons after taking considerations as mentioned in the said deeds, relinquished, assigned and transferred whatsoever right they had in the said land in favour of the Petitioner Nos. 2 and 3 herein and thereafter, on 20/11/2015 itself, the original owners executed Registered Sale Deed, which came be Registered at Serial No. 1174 in favour of Petitioner Nos. 2 and 3 herein. In view thereof, the transaction of the land Survey No. 185 - Suit Property No. 1 is complete and the Petitioner No. 2 and 3 have become the owners and are in possession of the said land Survey No. 185-Suit Property No. 1 and no other person has any right, title and interest in the said property.
(vi) Subsequently, vide orders dated 06/12/2016 and 24/03/2017, the petitioners obtained permission for utilizing the aforesaid lands for Non-Agricultural use and thereafter they also obtained permission for
NEUTRAL CITATION
R/CR.MA/16543/2019 CAV JUDGMENT DATED: 17/09/2024
undefined
development and construction on the said lands. Moreover, the Petitioner Nos. 2 to 6 also paid Betterment Charges and Municipal Corporation Tax for the said lands. Thereafter, vide 2 Registered Sale Deeds dated 15/06/2018, the Petitioners 2 to 6 sold the aforesaid lands to a partnership Firm - SKD's Surya Build Bands (LLP).
(vii) In the meanwhile and after pocketing substantial amount of consideration as mentioned above for relinquishing, assigning and transferring whatsoever rights they had in the said lands, the respondent No. 2
- complainant alleged that the petitioner No. 1 executed one undated, unnotarized and unattested agreement with the Respondent No. 2- Complainant and his wife for the aforesaid lands for consideration of Re 37,50,00,000/- and it is further alleged that out of the said consideration, Rs. 25,98,50,000/- is paid, whereas Rs. 11,50,00,000/- is not paid. Moreover, for the said unpaid amount, one partnership firm - Shri Siddhivinayak Associates through their authorized signatory - Accused No. 6, issued 7 cheques as follows.
(i) Two Cheques being Cheque Nos. 12731 and 12732 of IDBI Bank dated 03/05/2018 for Rs. 2 Crores each in favour of Shri Somabhai Sartanbhai Desai - complainant.
(ii) Two Cheques being Cheque Nos. 12733 and 12734 of IDBI Bank dated 03/05/2018 for Rs. 2 Crores each
NEUTRAL CITATION
R/CR.MA/16543/2019 CAV JUDGMENT DATED: 17/09/2024
undefined
in favour of Shrimati Kamuben @ Kamlaben Desai - wife of the complainant.
(iii) One Cheque being No. 12735 of IDBI Bank dated 21/05/2018 for Rs. 1.5 Crores in favour of Shri Somabhai Sartanbhai Desai - complainant.
(iv) Two Cheques being Cheque Nos. 12736 and 12741 of IDBI Bank dated 03/05/2018 for Rs. 1.5 Crores and 50 Lakhs respectively in favour of Shrimati Kamuben @ Kamlaben Desai - wife of Complaint.
(viii) Moreover, it is further alleged that the aforesaid cheques when deposited were dishonoured. Furthermore, when one cheque being Cheque No. 012375 of IDBI Bank dated 21/05/2018 of Rs. 1,50,00,000/- (Rupees One Crore and Fifty Lakhs) was deposited by the respondent No. 2- complainant on 21/05/2018, the said cheque was dishonoured and therefore, respondent No. 2- complainant issued notice dated 06/06/2018 to all the persons; i.e., the partnership firm and its partners being accused Nos. 1 to 8, the person with whom they alleged to have entered into agreement, i.e., accused No. 9 - petitioner No. 1 and the persons who have purchased the aforesaid lands after executing Registered Sale Deeds, i.e., accused Nos. 10 to 14 - petitioner Nos. 2 to 6.
(ix) On 28/06/2018, the petitioner No. 1 herein replied to the aforesaid notice dated 06/06/2018 and denied the
NEUTRAL CITATION
R/CR.MA/16543/2019 CAV JUDGMENT DATED: 17/09/2024
undefined
contentions and averments made in the said notice in toto. The petitioner No. 1 further clarified that the Petitioner No. 1 has not issued the said cheques. Furthermore, the petitioner No. 1 also informed the respondent No. 2- complainant and his wife that they have relinquished whatsoever rights they had in the said lands after execution of the Cancellation and Assignment Deeds, Possession Deed and subsequent Registered Sale Deeds by the original owners and therefore, the agreement of purposed sale of land is not a legal and valid agreement.
(x) On 28/06/2018, the petitioner Nos. 2 to 6 also replied to the aforesaid notice dated 06/06/2018 and denied the contentions and averments in toto. The Petitioner Nos. 2 to 6 in their reply further clarified that the Petitioner Nos. 2 to 6 have not issued the said cheques. Furthermore, the Petitioners also informed the Respondent No. 2- Complainant and his wife that the transaction between the Petitioner Nos. 2 to 6 and the Respondent No. 2- Complainant and his wife is complete after execution of the Cancellation and Assignment Deeds, Possession Deed and the subsequent Registered Sale Deeds by the original owners.
(xi) However, on 19/07/2018 the respondent No. 2 - complainant preferred the aforesaid Criminal Case before the learned Judicial Magistrate First Class, Ahmedabad (Rural) mala fidely and with an ulterior motive to extort money from the petitioners. The
NEUTRAL CITATION
R/CR.MA/16543/2019 CAV JUDGMENT DATED: 17/09/2024
undefined
respondent No. 2- complainant also arraigned the Petitioners herein.
7.1. Learned advocate Mr. Hakim submits that without considering the fact that the petitioners have not issued the cheque in question, the learned JMFC, Ahmedabad (Rural) mechanically issued process to the petitioners herein. He further submits that even before issuance of the notice under section 138, the respondent No. 2- complainant and his wife filed civil suit being Regular Civil Suit No. 7 of 2018 before the learned Senior Civil Judge, Ahmedabad (Rural). Moreover, as stated hereinabove, the respondent No. 2- complainant and his wife have impleaded the petitioners herein as defendant Nos. 1 to 6, and the original owners of the land as defendant Nos. 7 to 21. Furthermore, the partners of the partnership firm Shri Siddhivinayak Associates who are arraigned as accused Nos. 1 to 8 in the present Criminal Case and who have allegedly issued the cheques are not impleaded as party respondents in the said suit and no relief is sought against them.
7.2. Learned advocate Mr. Hakin further submits that after bi parte hearing, vide order dated 30/07/2019, the learned Senior Civil Judge, Ahmedabad (Rural) rejected the application Exhibit 5 of the respondent No. 2- complainant and his wife. It is further submitted that for dishonour of Cheque No. 12736 and Cheque No. 12741 dated 21/05/2018, the wife of
NEUTRAL CITATION
R/CR.MA/16543/2019 CAV JUDGMENT DATED: 17/09/2024
undefined
respondent No. 2 has filed Criminal Case No. 6457 of 2018. Moreover, for dishonour of Cheque No. 12731 and 12732, the respondent No. 2- complainant has preferred Criminal Case No. 12050 of 2018. However, in the said Criminal Case, vide order dated 09/10/2018, the summons came to be issued only to accused No. 1 to 9, whereas summons were not issued to the petitioners in the said case. The said order is not assailed by the respondent No. 2- complainant. Moreover, for Cheque No. 12733 and 12734 dated 03/05/2018, Criminal Miscellaneous Application No. 1412 of 2018 is registered on 04/07/2018, however the learned JMFC, Ahmedabad (Rural) has not yet taken cognizance of the said application.
7.3. Learned advocate Mr. Hakim submits that in view of the aforesaid facts and circumstances of the case and since the impugned criminal cases being Criminal Case Nos. 6364 of 2018 and 6457 of 2018 are non- maintainable being filed against the persons who have not issued the cheque, the charge of section 138 is not made out against the petitioners. He further submits that it is not in dispute that petitioners are neither the partners of a partnership firm nor the signatories of the instruments in question and the said fact is clearly found out from the complaint filed by the complainant. He further submits that when the petitioners are neither the partners of the partnership firm nor the signatories of the instruments in question, the ultimate chances of conviction of the petitioners are bleak and continuance of the criminal
NEUTRAL CITATION
R/CR.MA/16543/2019 CAV JUDGMENT DATED: 17/09/2024
undefined
prosecution against the petitioners is nothing but sheer abuse of process of the Court.
7.4. Learned advocate Mr. Hakim submits that in view of the aforesaid factual aspects, it becomes ex-facie evident and apparent that respondent No. 2- complainant and his wife and the other persons executed agreements and thereby relinquished their rights and assigned and transferred whatsoever rights they had in the Suit Properties in favour of the petitioners herein after taking substantial consideration as mentioned in the said deeds. Moreover, there is no dispute qua the said agreements. He, therefore, submits that present petitions may be allowed by quashing the proceedings of criminal cases instituted against the present petitioners by the respondent No.2 - original complainant.
8. On the other hand, learned advocate Mr. M. B. Gohil, who appears on behalf of original complainant has objected present petitions with vehemence and submitted that at the time of registration of the complaint, complainant has narrated entire sequence of events of incident in very graphical manner and if this Hon'ble Court would make cursory glance upon the contents of the complaint, in that event, it would be found out that present petitioners are also involved in the offence. They have actively participated and at their instance complainant had entered into business transaction with accused Nos. 1 to 8 and complainant is
NEUTRAL CITATION
R/CR.MA/16543/2019 CAV JUDGMENT DATED: 17/09/2024
undefined
taken into trap by accused Nos. 1 to 8 and rest of the accused persons have directly or indirectly facilitated the main accused persons knowing fully well that the intention of the accused Nos. 1 to 8 is not pure and clear and there are all possible chances that the complainant would be duped by the accused Nos. 1 to 8, even though, they have supported accused Nos. 1 to 8 and taken the complainant into confidence to carry out business transaction and under the influence of the said favour provided by the present petitioners complainant had entered into said transaction. Therefore, present petitioners are equally responsible in the said offence. Learned advocate Mr. Gohil has candidly accepted that present petitioners are neither the partners of the partnership firm nor the signatories of the instruments in question. Learned advocate Mr. Gohil further submits that to prove the charges levelled against the accused persons, evidence is required to be led and without leading the evidence, those facts cannot be brought on record and this is the premature stage and merely on the ground that present petitioners are neither the partners of the partnership firm nor the signatories of the instruments in question, the prosecution launched against them cannot be quashed. Learned advocate Mr. Gohil has put reliance upon the recent decision of the Hon'ble Apex Court in the case of S. P. Mani and Mohan Dairy v. Snehalatha Elangovan, reported in (2023) 10 SCC 685 and submitted that as observed by the Hon'ble Apex Court in the aforesaid decision, if any Director or Partner
NEUTRAL CITATION
R/CR.MA/16543/2019 CAV JUDGMENT DATED: 17/09/2024
undefined
wants the process to be quashed by filing a petition under Section 482 of the Code on the ground that only a bald averment is made in the complaint and that he is really not concerned with the issuance of the cheque, he must in order to persuade the High Court to quash the process either furnish some sterling incontrovertible material or acceptable circumstances to substantiate his contention. He must make out a case that making him stand the trial would be an abuse of process of court. The complaint cannot be quashed merely on the ground that apart from the basic averment no particulars are given in the complaint about his role. Thus, the ratio laid down by the Hon'ble Apex Court in the aforesaid case is squarely applicable to the facts of the present case and with a view to quash the proceedings of the criminal case petitioners have to furnish some sterling incontrovertible material which ultimately would substantiate the claim of the petitioners. Here, in the case on hand, if allegations levelled against the petitioners are to be seen, in that event, their actual role and active participation in the commission of crime is clearly found out. Hence, the learned Trial Court has rightly passed the order of issuance of process against the petitioners and the said order is just, fair and based upon the sound principle of law and therefore the present petitions being devoid of merits deserve dismissal.
9. Having heard the learned advocates appearing for the parties and having gone through the material placed
NEUTRAL CITATION
R/CR.MA/16543/2019 CAV JUDGMENT DATED: 17/09/2024
undefined
on record, it is found out that admittedly the petitioners are neither the partners of the partnership firm nor the signatories of the instruments in question and therefore I am of the considered view that proceedings initiated under Section 138 of the Negotiable Instruments Act against the petitioners are nothing but sheer abuse of process of the Court and while passing the order of issuance of process against the petitioners, the learned Court concerned has committed an error, which warrants interference by this Court.
10. It is also pertinent to note that respondent No.2 and his wife have also filed one suit before the concerned Court against the present petitioners and others and in the said suit original accused Nos. 1 to 8 are not impleaded as party and no relief is sought against them. It is not in dispute that original accused No.6 is the authorized signatory of accused No.1 - partnership firm i.e. Shri Siddhivinayak Associates and accused nos. 2 to 8 are the partners of the said partnership firm. The accused No.6 has signed the instruments in question, which were dishonoured. The complainant is not in a position to dispute the fact that petitioners are not the partners of the said partnership firm and they are not the signatories of the instruments in question. On the contrary, the said fact is clearly found out from the complaint of the complainant filed under Section 138 of the N.I. Act. Thus, when the petitioners are not the partners of the
NEUTRAL CITATION
R/CR.MA/16543/2019 CAV JUDGMENT DATED: 17/09/2024
undefined
partnership firm and signatories of the instruments in question, the decision of the Hon'ble Apex Court relied on by learned advocate Mr. Gohil for the respondent No.2 would not be applicable in the facts of the present case.
11. At this juncture, I would like to refer and rely upon the observations made by the Hon'ble Apex in the case of Achin Gupta v. State of Haryana and Another , reported in (2024) 4 Supreme 347, wherein the Hon'ble Apex Court has observed and held as under:
"20. It is now well settled that the power under Section 482 of the Cr.P.C. has to be exercised sparingly, carefully and with caution, only where such exercise is justified by the tests laid down in the Section itself. It is also well settled that Section 482 of the Cr.P.C. does not confer any new power on the High Court but only saves the inherent power, which the Court possessed before the enactment of the Criminal Procedure Code. There are three circumstances under which the inherent jurisdiction may be exercised, namely (i) to give effect to an order under the code, (ii) to prevent abuse of the process of Court, and (iii) to otherwise secure the ends of justice.
xxx xxx xxx
23. In R.P. Kapur v. State of Punjab, AIR 1960 SC 866, this Court summarised some categories of cases where inherent power can, and should be exercised to quash the proceedings:
(i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction.
(ii) where the allegations in the first
NEUTRAL CITATION
R/CR.MA/16543/2019 CAV JUDGMENT DATED: 17/09/2024
undefined
information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged.
(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge."
12. Thus, if the allegations levelled against the petitioners in the complaints filed under Section 138 of the Negotiable Instruments Act are taken at its face value and accepted in their entirety, they do not constitute the offence alleged, insofar as the present petitioners are concerned. It is well settled that when the instrument is signed by the authorized signatory of a partnership firm, the prosecution under Section 138 of the Negotiable Instruments Act can be instituted against the persons, who were in-charge and responsible for the conduct of the business of the partnership firm at the relevant time when the offence was committed. It is also pertinent to note that complainant and his wife preferred four complainants of similar nature against the accused persons which are pending before different Courts. However, out of the said four complaints, in two complainants, another Court passed order of issuance of process against the original accused Nos. 1 to 8 only (partnership firm and its partners) and in two complaints in question, the learned Trial Court has passed the orders, whereby process came to be issued against all the accused persons including the present petitioners also. Thus, in the instant case, when the petitioners are neither
NEUTRAL CITATION
R/CR.MA/16543/2019 CAV JUDGMENT DATED: 17/09/2024
undefined
the partners nor the signatories of the instruments in question, prosecution instituted against them is nothing but sheer misuse of process of the Court and the learned trial Court has overlooked the said important aspect and committed an error while issuing process against the petitioners for the offence punishable under Section 138 of the Negotiable Instruments Act. Thus, without going into the further details of the matter, only on the ground that petitioners are neither the partners of the partnership firm nor the signatories of the instruments in question, the present petitions are required to be allowed.
13. Thus, in view of the aforesaid discussion, the petitions succeed and are accordingly allowed. The proceedings of Criminal Case Nos. 6364 of 2018 and 6457 of 2018 pending in the Court of Additional Chief Judicial Magistrate, Ahmedabad (Rural) are quashed qua the petitioners.
14. Rule is made absolute to the aforesaid extent. Direct service is permitted.
15. Connected application, if any, stands disposed of.
Sd/-
(DIVYESH A. JOSHI, J.) Lavkumar Jani/Gautam
Publish Your Article
Campus Ambassador
Media Partner
Campus Buzz
LatestLaws.com presents: Lexidem Offline Internship Program, 2026
LatestLaws.com presents 'Lexidem Online Internship, 2026', Apply Now!