PATEL PRAVINBHAI KHIMJIBHAI PAGDHAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Rule. Shri KT Dave, learned APP waives service of Rule on behalf of respondent No.1 State. Shri RC Kakkad, learned advocate waives service of Rule on behalf of respondent No.2. As common question of law and facts arise and parties to the proceedings are the same in both these applications they are being disposed of by this common judgment and order.

(2.) Criminal Misc. Application No. 6901 of 2007 is filed by applicant original-accused No.2 for an appropriate order of quashing and setting aside the Criminal Complaint No. 5503 of 2006 pending before the learned JMFC, Jamnagar qua the applicant. Criminal Misc. Application No. 6904 of 2007 is filed by the very applicant original-accused No.2 for an appropriate order of quashing and setting aside the Criminal Complaint No. 5502 of 2006 pending in the Court of JMFC, Jamnagar qua applicant original-accused No.2. The aforesaid two criminal complaints are filed by the respondent No.2, original-complainant against the applicant original-accused No.2 in the Court of learned JMFC, Jamnagar for the offences under Section 138 read with 141 and 142 of The Negotiable Instruments Act [hereinafter refered to as 'the Act'] alleging inter alia that the original-complainant is carrying on business in the name of Uday Trading Company; the same is a partnership firm; they are carrying on the business through agents; and they were knowing each other. It is further alleged in the complaints that the original-accused have entered into the business transaction on 4.3.2006 through one agent M/s. Ajeet Oils and purchased goods of Rape Seed/Mustard Oil worth Rs. 3,72,388 at Rs. 375.96 per 10 Kgs., in loose form and delivery was given to the accused persons through Golden Transport so far as Criminal Case No. 5503 of 2006 is concerned. Qua both criminal complaints two cheques were issued by the original-accused No.1 as proprietor/authorised signatory of M/s. Akshar Agro for an amount of Rs. 1,86,194 each; when the said cheques were deposited they were returned with an endorsement "account closed"; thereafter statutory notices were issued upon both the accused persons, however they refused to accept the said notices; after the statutory period as the payment was not made the respondent No.1 original-complainant has filed the aforesaid two complaints for the offences under Section 138 and 141 of the Act wherein the learned JMFC has issued the summons upon the applicant for the offence under Section 138 of the Act; and hence the applicant has preferred the present applications under Section 482 of the Code of Criminal Procedure.

(3.) Shri Trivedi, learned advocate appearing on behalf of the respective applicants has vehemently submitted that so far as the applicant is concerned he is neither the partner and/or in any way connected with the firm M/s. Akshar Agro which has issued the cheques in question and the firm M/s. Akshar Agro which has issued the cheques in question is a proprietary firm and therefore the petitioner cannot be held vicariously liable under Section 141 of the Negotiable Instruments Act. It is further submitted that even in the complaint there are no averments and/or any allegation that the applicant original-accused No.1 was in day to day affairs or management of the firm. It is submitted that the aforesaid submission is over and above the submission that the applicant is not in any way connected with M/s. Akshar Agro, a proprietary firm who has issued the cheques in question. It is also submitted that the applicant is neither a signatory to the cheques nor a proprietor of the firm who has issued the cheques and therefore no case is made out against the applicant under Section 138 of the Act. Therefore it is requested to quash and set aside the complaints qua the applicant original-accused No.2 and allow the present applications. Shri Trivedi, learned advocate has relied upon the Judgment of the Hon'ble Supreme Court in the case of Raghu Lakshminarayanan v. M/s. Fine Tubes, reported in AIR 2007 S.C. 1634 in support of his submission and prayers.