1 Rule returnable forthwith. Ms. Chandarana, the learned additional public prosecutor wavies service of notice of rule for and on behalf of the respondent No.2 - the State of Gujarat. Mr. Nishit P. Gandhi, the learned advocate waives service of notice of rule for and on behalf of the respondent No.1 - the original complainant.
2 By this application under Section 482 of the Code, the applicants - the original accused Nos.2, 3 and 4 seek to invoke the inherent powers of this Court under Section 482 of the Code of Criminal Procedure, 1973 praying for quashing of the further proceedings of Criminal Case No.3993 of 2013 pending in the Page 1 of 4 R/CR.MA/17108/2014 ORDER Court of the learned Chief Judicial Magistrate, Patan, for the offence punishable under Section 138 of the Negotiable Instruments Act.
3 It appears from the materials on record that the respondent No.2 - the original complainant lodged a private complaint in the court of the Chief Judicial Magistrate, Patan, against the applicants herein and one another coaccused for the offence punishable under Section 138 of the Act. The cheque in question for the amount of Rs.8,66,000/ was drawn by the original accused No.1 - Nitinkumar Dhirajlal Shah, as 'Karta/Manager' for Riddhi Siddhi Traders, a H.U.F. The applicants herein are the family members of Nitinkumar Dhirajlal Shah and are arraigned as accused in their capacity as members of the H.U.F.
4 Mr. Bhatt, the learned advocate appearing for the applicants submitted that the complaint under Section 138 of the Act against the three applicants herein is not maintainable as they are not the signatory to the cheque in question. The cheque was drawn in favour of the complainant duly signed by the original accused No.1
- Nitinkumar Dhirajlal Shah, in his capacity as 'Karta/Manager' of N.D. Shah, a H.U.F. Mr. Bhatt submitted that no vicarious liability could be fastened against the applicants herein under Section 141 of the Act in the absence of any evidence to show that the applicants as members of the H.U.F. were managing the affairs of the Riddhi Siddhi Traders and N.D. Shah, a H.U.F. In such circumstances referred to above, Mr. Bhatt submitted that the applications deserves consideration and the proceedings against the three applicants be quashed.
learned counsel appearing with Mr. Nishit P. Gandhi, the learned advocate for the original complainant. Mr. Majmudar submitted that there are averments in the complaint which would prima facie suggest that the applicants herein as members of the H.U.F. were managing the affairs of N.D. Shah, a H.U.F. In such circumstances, he submitted that there be no merits in this application and the same deserves to be rejected.
6 Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration is whether the complaint deserves to be quashed so far as the three applicants herein are concerned. Indisputably, the cheque in question was signed by the original accused No.1 in his capacity as 'Karta/Manager' of N.D. Shah, a H.U.F. The three applicants before me may be members of the same family or the H.U.F., but there is nothing on record to suggest that they are in the daytoday affairs and management of the Riddhi Siddhi Traders. Mere verbatim reproduction of the Section 141 by itself would not sufficient to fasten the vicarious liability to the three applicants herein. It is necessary to adduce some evidence in that regard.
7 In the aforesaid view of the matter, this application is allowed qua the three applicants herein. The Criminal Case No.3993 of 2013 pending in the Court of the learned Chief Judicial Magistrate, Patan is hereby ordered to be quashed qua the applicants herein.
R/CR.MA/17108/2014 ORDER Consequently, all further proceedings pursuant thereto shall stand terminated. Rule is made absolute qua the three applicants herein. Direct service is permitted.
8 The trial shall now proceed further expeditiously against the other coaccused in accordance with law.
(J.B.PARDIWALA, J.) chandresh Page 4 of 4