HIMANSHU RAJENDRAKUMAR AGARWAL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) These applications are filed under Sec. 482 of the Code of Criminal Procedure, 1973 ('the Code' for short) for quashing and setting aside the complaints being Criminal Case Nos.37079 of 2016, 37076 of 2016, 37081 of 2016, 37072 of 2016, 37077 of 2016, 28893 of 2016 and 37075 of 2016 pending in the Court of learned 3 rd Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Surat qua the applicant filed under the provisions of Sec. 138 of the the Negotiable Instruments Act ('NI Act' for short).

(2.) The facts leading to filing of these applications, as stated in the applications are such that the impugned complaints came to be filed by the respondent no.2- complainant alleging that the complainant is a private limited company; that the complainant has filed the impugned complaints in his capacity as a Director of the said company; that the complainant company is indulged in the business of imported industrial call trading; that the company has various branches, out of which one is situated at Thane, Maharashtra; that the accused visited the Thane office of the complainant company and purchased goods for which the complainant company had raised certain bills; that for the said outstanding payment of goods from Marriott Cotsyn Industries Limited, the accused had given the cheques in his capacity as an authorized signatory, which were deposited by the complainant. However, the said cheques returned with an endorsement 'funds insufficient'; that the statutory notice was issued to the applicant, which was not replied and the amount was not paid. Therefore, the impugned complaints are filed, which are prayed to be quashed by way of these applications.

(3.) Heard learned advocate for the parties. 3.1. Learned advocate for the applicant submitted that the goods were purchased by the partnership firm M/s Marriott Cotsyn Industries of which the accused is a partner, the cheques in question were issued by the said firm; however, the said firm is not joined as an accused; that in absence of joining the partnership firm, the partners cannot be prosecuted for the offence punishable under Sec. 138 of the NI Act; that none of the other partners have been prosecuted as well; that therefore the proceedings against the partner solely are not maintainable; that the argument of the complainant that it is a disputed question of fact is not tenable as the complaint orally disputes the document of partnership firm but no reply has been filed till date taking the said contention; that even though the contention of the complainant that no reply to the notice has been given is admitted, it would not render the prosecution maintainable when the partnership firm is not joined as an accused. He, therefore, submitted that the complaints against the applicant are not tenable and liable to dismissed by allowing these applications, considering the various judgments of the Hon'ble Apex Court as well as this Court.