Gujarat High Court
Vipul Muljibhai Varsani vs Mavji Premji Varsani on 3 July, 2025
NEUTRAL CITATION
R/CR.MA/4276/2016 ORDER DATED: 03/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 4276 of 2016
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VIPUL MULJIBHAI VARSANI
Versus
MAVJI PREMJI VARSANI & ANR.
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Appearance:
MS HELLY PARIKH FOR ADITYA A GUPTA(7875) for the Applicant(s) No. 1
MR AR GUPTA(1262) for the Applicant(s) No. 1
MR TIRTHRAJ PANDYA, APP for the Respondent(s) No. 2
RULE SERVED for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 03/07/2025
ORAL ORDER
1. By way of this application under Section 482 of the Code of
Criminal Procedure, 1973 (hereinafter referred to as "the Code"),
the petitioner has prayed to quash and set aside proceedings of
Criminal Case No.2319 of 2015 qua the petitioner, pending
before the Ld. Chief Judicial Magistrate, Bhuj - Kachchh.
2. Brief facts of the case are as under:-
2.1 Respondent no.1 filed criminal case under section 138 of
Negotiable Instrument Act against six accused and the petitioner
is arrayed as accused no.5. It is alleged that accused no.1 is
partnership firm and accused nos.3 to 5 are partners of the said
firm. It is alleged in the complaint that complainant handed over
over sum of Rs.1 lakh to accused no.2 firm through accused
no.1 agent of the firm on 22.09.2014. At the time of handing
NEUTRAL CITATION
R/CR.MA/4276/2016 ORDER DATED: 03/07/2025
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over Rs.1 lakh, post dated cheque in question bearing
No.002554 dated 23.09.2015 was handed over to respondent
no.1 by partner of accused no.2 Varsani Construction Co. It is
alleged that sum of Rs.1 lakh was handed over by complainant
for one and therefore, was payable after a year. On deposit of
cheque it is returned with endorsement that account closed.
After completing formalities, complainant after issuing statutory
notice, Criminal Case was filed against company and its partners
under section 138 read with section 141 of NI Act. Learned CJM,
was pleased to issue process. Hence, present petition.
4. Heard learned advocate Ms.Parikh for petitioner and
learned APP for respondent - State. Respondent complainant is
served but did not remain present.
5. Learned advocate Ms.Parikh for the petitioner submitted
that the petitioner is not vicariously liable as he was not partner
of partnership firm Varsani Construction Co. It is further
submitted that there is no averments made in the petition which
make petitioner vicariously liable on behalf of partnership firm.
Referring to section 141 of Negotiable Instrument Act, it is
submitted that in order to bring accused in the offence, prima
facie complainant has to prove that the petitioner is responsible
and involved in day to day business of company. No such
averments are made in the complaint and even cheque is not
signed by the petitioner. Therefore, it is submitted to allow the
petition.
6. Learned APP submitted that it is dispute between private
parties and therefore, he submitted to pass necessary orders.
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R/CR.MA/4276/2016 ORDER DATED: 03/07/2025
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7. Perusal of complaint, it appears that there is no specific
averments made which state that the petitioner was in charge of
business of Varsani Construction Co. and responsible for the
business of the company. Averments made in para 1 of
complaint reads as under (it is in Gujarati, for better
understanding it is translated in English) : -
"I, the Complainant, is an agriculturist residing in Sukhpar
Village, Bhuj Taluka. Accused No. 1, Mukesh Bhimji
Gorsiya, works as an agent for M/s Varsani Construction
Company. Accused No. 2 is a partnership firm, and
Accused Nos. 3 to 6 are partners in the aforementioned M/
s Varsani Construction Company. However, I - the
complainant has not been able to procure comprehensive
details pertaining to M/s Varsani Construction Company,
the partnership firm. Accordingly, I hereby reserve our
right to produce deficit particulars in this complaint. The
Accused persons borrow money from general public in
order to raise capital for the business operations of M/s
Varsani Construction Company and utilize the amount for
their business. Accused No. 1 manages the financial
transactions.
I, the complainant, lent an amount of Rs. 1,00,000/- to
Accused No. 2, M/s Varsani Construction Company, on
22/09/2014 through Accused No. 1. At that time, Dhanji
Devshi Vagani, from our village, was present at the shop of
Accused No. 1. He is aware of the details of our
transaction. At that time, the accused, acting as a partner
of the said company, issued a cheque bearing Cheque No.
002554 for Rs. 1,00,000/- (Rupees One Lakh Only) from
the Varsani Company account, drawn on Bank of Baroda,
Mankuva Branch, dated 23/09/2015. I had lent the
amount for a period of one year. A photocopy of the said
cheque is produced herewith vide Mark-1."
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8. Noticeably necessary averments are missing which are
required as per section 141 of Negotiable Instrument Act.
Moreover, Annexure B which is deed indicates that the petitioner
was not partner of Varsani Construction Co.
9. Issue raised herein-above is squarely covered by judgment
of this Court in Special Criminal Application No.2975 of 2017
dated 02.07.2025, whereby this Court in detail discussed
requirement of section 141 of N.I.Act.
25. In wake of above, the petition is allowed. Proceedings of
Criminal Case No.2319 of 2015 pending before the Ld. Chief
Judicial Magistrate, Bhuj - Kachchh well as all consequential
proceedings initiated in pursuance thereof are hereby quashed
and set aside qua the petitioner herein - Vipul Muljibhai
Varsani. Rule made absolute to the aforesaid extent. Direct
service is permitted.
(J. C. DOSHI,J)
SATISH
