KISHORBHAI RAGHAVBHAI PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Present petition has been filed by the applicant accused No.2. The complainant The Saurashtra Co.Operative Bank Ltd., had filed a complaint under Section 138 and 141 of the Negotiable Instruments Act. It is the case of the complainant that, one Riddhi Textiles which was proprietorship of Shri Bharatbhai Balubhai Patel was sanctioned a loan. As no repayment of such loan was being made by the concerned proprietor, a Lavad Suit being Lavad Suit No. 2337 of 2003 for recovery of Rs. 45,49,185/ was filed, which was decreed by the Lavad Court on 31.03.2004. The Execution Application was filed before the City Civil Court. Notices of this execution proceedings was served on the accused, including the accused No.2, the present applicant. It is the case of the complainant that, pursuant to such execution proceedings, cheques were issued by one Vimlaben Laxmanbhai Suhagiya accused No.1. Such cheques were signed on behalf of the petitioneraccused No.2. On the cheque being dishonored, the bank filed a complaint under Section 138 of the Negotiable Instruments Act against the present petitioner and the accused No.1 Vimlaben Laxmanbhai Suhagiya. It is the case of the petitioner that, it is not disputed by the parties that the cheque in question was issued and signed by the accused No.1 and not by the petitioner.

(2.) Mr A R Gupta, learned advocate for the applicant contended that, it was a case where the cheque was neither issued by a Company nor by the partnership firm, and therefore, the doctrine of vicarious liability does not become applicable in the case of the petitioner. It was a case wherein an individual had issued a cheque namely the accused No.2, and therefore, the guarantorthe accused No.2 in no way be held responsible for issuance of such cheque.

(3.) I have perused the complaint filed by the respondent No.2, who is represented by advocate Shri Vasant Shah, who has not remained present even on the second round when the petition is taken up for hearing. It is evident that, even it is not the case of the complainant that the cheque was issued by the accused No.2 or that signed by him, nor it is the case of the complainantrespondent No.2 that the cheque was issued issued by respondent No.1 and signed by the accused namely the accused No.1 and the accused No.2, the present applicant.