Gujarat High Court
Vinubhai @ Vinodkumar Narottambhai ... vs State Of Gujarat on 25 June, 2025
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R/CR.MA/6059/2019 ORDER DATED: 25/06/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 6059 of 2019
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VINUBHAI @ VINODKUMAR NAROTTAMBHAI MAKWANA & ORS.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR P B KHANDHERIA(5228) for the Applicant(s) No. 1,2,3
MR BRIJ V SHETH(10594) for the Respondent(s) No. 2
MR CHINTAN DAVE, ADDL. PUBLIC PROSECUTOR for the Respondent(s)
No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 25/06/2025
ORAL ORDER
1. Rule. Learned advocates Mr. Brij Sheth waives rule for
respondent No.2 and learned APP waives rule for the
respondent State.
2. By way of this application under Section 482 of the Code of
Criminal Procedure, 1973 (hereinafter referred to as "the Code"),
the petitioners prayed to quash and set aside criminal case No.
8278 of 2018 qua the petitioners, pending before the Ld. CJM,
Rajkot.
3. Brief facts of the case are as under:-
3.1 The complainant is running proprietor firm in the name of
Shrinathji Gold Art and doing business of gold ornaments and
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the applicants and other accused persons started buying gold
ornaments from the respondent no.2/ori. Complainant. That all
the present applicants and original accused no.2 are active
partners of V. N. Jewellers, Jetpur who is doing business of
buying and selling of Gold Ornaments. That present applicants
has given consent to accused no.2 as signing authority of all
bank related works of the said partnership firm.
3.2 That since February 2018, all the accused started business
relation with the respondent no.2/ori. Complainant. And the
first transaction was done on 24-02-2018 and payment was
cleared by the accused persons. Thereafter on 03-05-2018
accused bought gold ornaments of Rs.27,00,000/- on credit from
the respondent no.2/ori. Complainant and given two cheques of
Union Bank of India, Jetpur Branch.
3.3 The respondent no.2/ori. Complainant has deposited said
cheques in his bank account on 01-06-2018 but the said
cheques were returned due to exceed arrangement and it was
not accepted by the bank and were same dishonoured. The
respondent no.2/ori. Complainant was intimated on 04-06-
2018. Thereafter, on 06-06-2018 respondent no.2/ori.
Complainant served the legal notice through his advocate to
accused and demand the cheques amount. But same was not
served as house and shop were closed. With these and certain
other allegation the respondent no.2/ori. Complainant has filed
present complaint.
3.4 That earlier present applicants were partners from year
2001 to 2015-2016 in the firm of accused no.2. But petitioner
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no.1 and 2 retired as partner from the firm of accused no.2 on
31.03.2016, and petitioner no.3 retired as partner from the firm
of accused no.2 on 30.06.2015 by way of registered Partnership
Dissolution Deed.
3.5 That applicants have also exhibited the entries of
Partnership Dissolution Deed before the Registrar of Firms in
'Form-G'.
3.6 That due to false implication in the complaint lodged by the
Respondent No.2, before Ld. Chief Judicial Magistrate at Rajkot
vide Criminal Case No. 8278 of 2018, the Applicants are
constrained to file this petition for quashing of the said
complaint.
4. Learned advocate for the petitioners would submit that the
cheques in question were issued on 14.5.2018, which have
signed by original accused No.2, accused No.1 is VN Jwellers,
Jetpur. He would further submit that the dissolution deed was
executed on 1.7.2015 and at that time, petitioner No.3 herein
withdrew from VN Jwellers and subsequently, two other
partners i.e. present petitioner Nos.1 and 2 also withdrew
themselves as partners from VN Jwellers by executing deed
on 31.3.2016. He would further submit that Registrar of firm
has acknowledged the same. Referring to Annexure C,
learned advocate for the petitioners would submit that notes
in the Registrar of firm were recorded on 13.12.2016 and
18.12.2016 and thus, the petitioners have retired from the
partnership firm of VN Jwellers much prior to issuance of
cheque and therefore, petition does not fall within the scope
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of section 141 of the NI Act.
4.1 Upon such submission, he prays to allow this petition.
5. Per contra, learned advocate appearing for the complainant
referring to judgment of this Court in case of Satish Menon Vs.
State of Gujarat, 2017(4) GLR 3385 and in case of Rallis India
Ltd. Vs. Poduru Vidya Bhusan and others, 2012(1) SCC (Cri.)
778, would submit that whether the petitioners have been
retired from VN Jwellers or not is a disputed questions of fact
and it can be adjudicated during trial, but it is not a subject
matter of quashing the complaint. He would further submit
that the petitioner No.1 has delivered the cheque in question
to the complainant and therefore, it shows that the petitioner
No.1 is slipping partner of the firm and they are in fact doing
the business keeping Mr. Hiren as puppet Director. Upon
such submission, he requests to dismiss the petition.
6. On the other hand, learned APP, in a private disputes
between the parties, prays to pass necessary orders.
7. Having heard learned advocates for both the sides, what
could be noticed that if the issue raised in a petition u/s 482 of
the Code of Criminal Procedure, 1973 is a disputed questions
and facts, certainly the Court cannot exercise jurisdiction to
decide those disputed questions of fact at threshold, but rather
they have to be left for decision during trial. In the present case,
if we examine the contention raised in the petition, the
petitioners came out with a specific case that when the cheque
was issued they were not the partners of VN Jwellers. The
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petitioners referred to dissolution of partnership deed
produced at Annexure B colly. Learned advocate Mr. Sheth
could not deny execution of this dissolution of partnership
deed. According to this deed, the petitioners have retired
from VN Jwellers from 1.7.2015 and 31.3.2016. The Registrar
of firm also recorded retirement of partners produced at
Annexure C. These documents are undisputed documents. It
is alleged in the complaint the disputed cheques being
No.76912 and 76913 were issued in favour of the complainant
and were drawn by VN Jwellers and were signed by original
accused No.2 Mr. Hiren, the only person left in VN Jwellers.
8. At this juncture, let refer section 141 of the NI Act,
which reads as under:-
"141. Offences by companies. --
(1)If the person committing an offence under section
138 is a company, every person who, at the time the
offence was committed, was in charge of, and was
responsible to the company for the conduct of the
business of the company, as well as the company,
shall be deemed to be guilty of the offence and shall
be liable to be proceeded against and punished
accordingly:Provided that nothing contained in this
sub-section shall render any person liable to
punishment if he proves that the offence was
committed without his knowledge, or that he had
exercised all due diligence to prevent the commission
of such offence:Provided further that where a person
is nominated as a Director of a company by virtue of
his holding any office or employment in the Central
Government or State Government or a financial
corporation owned or controlled by the Central
Government or the State Government, as the case
may be, he shall not be liable for prosecution under
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this Chapter.(2)Notwithstanding anything contained
in sub-section (1), where any offence under this Act
has been committed by a company and it is proved
that the offence has been committed with the consent
or connivance of, or is attributable to, any neglect on
the part of, any director, manager, secretary or other
officer of the company, such director, manager,
secretary or other officer shall also be deemed to be
guilty of that offence and shall be liable to be
proceeded against and punished
accordingly.Explanation.--For the purposes of this
section,--(a)"company" means any body corporate
and includes a firm or other association of individuals;
and(b)"director", in relation to a firm, means a
partner in the firm."
9. If an offence u/s 138 of the NI Act is committed by the
company, which includes body corporate or firm, if person, who
is at the time of offence in charge of the company or was
responsible to the company for conduct of business of the
company, shall also be liable and shall be deemed to be guilty of
the offence. In other words, prior to committal of the offence, the
petitioners, who were former partners of VN Jwellers, have
retired and their retirement has been acknowledged by Registrar
of Firm and it is proved by acknowledgment receipt. In view of
above, continuation of proceedings against the petitioners would
be absurd process of law.
10. Under these circumstances, the authorities cited by
learned advocate for the complainant rendered no assistant to
the case of the complainant.
11. In the case of State of Haryana Vs. B.Bhajanlal & ors., AIR
1992 SC 604, the Hon'ble Apex Court summed up the
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proposition of law, which reads as under:-
"(1) Where the allegations made in the First Information
Report or the complaint, even if they are taken at their
face value and accepted in their entirety do not prima
facie constitute any offence or make out a case against
the accused.
(2) Where the allegations ins the F.I.R. and other
materials, if any, accompanying the F.I.R. do not disclose
a cognizable offence, justifying an investigation by police
officers under S.156(1) of the Code except under an order
of a Magistrate within the purview of S.155(2) of the code.
(3) Where, the uncontroverted allegations made in the
F.I.R. or complaint and the evidence collected in support
of the same donot disclose the commission of any offence
and make out the case against the accused.
(4) Where, the allegations in the F.I.R. do not constitute a
cognizable offence but constitute only a non-cognizable
offence, no investigation is permitted by a police officer
without an order of a Magistrate as contemplated under
S.155(2) of the Code.
(5) Whether, the allegations made in the F.I.R. or
complaint are sO absurd and inherently improbable on
the basis of which no prudent person can ever reach a
just conclusion that there is sufficient ground for
proceeding against the accused.
(6) Where, there is an express legal bare engrafted in any
of the provisions of the Code or the concerned Act (under
which a criminal proceeding is instituted) toi the
institution and/or where there is a specific provision in
the Code or the concerned Act, providing efficacious
redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended
with malafide and/or where the proceeding is maliciously
instituted with an ulterior motive for wreaking vengeance
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on the accused and with a view to spite him due to
private and personal grudge."
11.1 The findings of the Hon'ble Apex Court in para 1,3 and 7
are attracted in the present case. In view of above, present
petition deserves consideration.
12. In the result, present petition is allowed. Impugned
proceedings of criminal case No. 8278 of 2018 pending before
the Ld. CJM, Rajkot qua the petitioners herein are hereby
quashed and set aside. Rule made absolute to the aforesaid
extent. Direct service is permitted.
(J. C. DOSHI,J)
SHEKHAR P. BARVE
