9911796707
TMI Blog2024 (9) TMI 1241X X X X Extracts X X X X X X X X Extracts X X X X ..... not impleaded as party and no relief is sought against them. It is not in dispute that original accused No.6 is the authorized signatory of accused No.1 - partnership firm i.e. Shri Siddhivinayak Associates and accused nos. 2 to 8 are the partners of the said partnership firm. If the allegations levelled against the petitioners in the complaints filed under Section 138 of the Negotiable Instruments Act are taken at its face value and accepted in their entirety, they do not constitute the offence alleged, insofar as the present petitioners are concerned. It is well settled that when the instrument is signed by the authorized signatory of a partnership firm, the prosecution under Section 138 of the Negotiable Instruments Act can be instituted against the persons, who were in-charge and responsible for the conduct of the business of the partnership firm at the relevant time when the offence was committed - without going into the further details of the matter, only on the ground that petitioners are neither the partners of the partnership firm nor the signatories of the instruments in question, the present petitions are required to be allowed. The proceedings pending in the Court of Ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 2,79,00,000/- (Two Crores and Seventy Nine Lakhs) and Rs. 4,95,00,000/- (Rupees Four Crores and Ninety Five Lakhs), the actual amount of the land was Rs. 37,51,00,000/- (Rupees Thirty Seven Crores and Fifty One Lakhs) and for that an agreement was executed between respondent No. 2 - complainant and her wife and petitioner No. 1 herein. It is further alleged that out of the said amoutn of Rs. 37,51,00,000/- (Rupees Thirty Seven Crores and Fifty One Lakhs), Rs. 25,98,50,000/- (Rupees Twenty Five Crores Ninety Eight Lakhs and Fifty Thousand) is paid, whereas Rs. 11,50,00,000/- (Rupees Eleven Crores and Fifty Lakhs) is not paid. It is further alleged that Shri Siddhivinayak Associates - A Registered Partnership Firm through their authorized signatory, original accused No. 6, issued 7 cheques of different amounts of total Rs. 11,50,00,000/- (Rupees Eleven Crores and Fifty Lakhs). It is alleged that the said cheques when deposited were dishonored and therefore, notice under section 138 of the NI Act was issued for one such dishonoured cheque on 06/06/2018 and the petitioners herein as well as other persons replied to the said notice on 28/06/2018. Thereafter, the complainant lodged cri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11/2007 in favour of the Respondent No. 2- Complainant and his wife and 4 Others persons. (iii) Similarly for land survey No. 186/1 - Suit Property No. 2, it is claimed that an Agreement to Sell dated 19/01/2001 for 1260 square meters out of 1928 square meters was executed by the original owners, i.e., Defendant Nos. 16 to 21 in the Suit in favour of wife of Respondent No. 2 i.e. Shrimati Kamuben Somabhai Desai. (iv) Thereafter, the petitioner Nos. 2 to 6 herein intended to purchase the said lands being Land Survey No. 186/1 - Suit Property No. 2. In pursuance thereto, the wife of the Respondent No. 2 executed two documents viz., (i) Cancellation Deed cum Consent Agreement and Possession Deed and (ii) Assignment Deed, both dated 10/11/2014. Thereby, wife of Respondent No. 2 after taking consideration as mentioned in the said deeds, relinquished, assigned and transferred whatsoever right she had in the said land in favour of the original owners and thereafter, the original owners executed Registered Sale Deed dated 12/11/2014 Registered at Serial No. 2192 for the said land in favour of the Petitioner Nos. 2 to 6. In view thereof, the transaction of the land Survey No. 187 - Suit Pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,00,000/- is not paid. Moreover, for the said unpaid amount, one partnership firm - Shri Siddhivinayak Associates through their authorized signatory - Accused No. 6, issued 7 cheques as follows. (i) Two Cheques being Cheque Nos. 12731 and 12732 of IDBI Bank dated 03/05/2018 for Rs. 2 Crores each in favour of Shri Somabhai Sartanbhai Desai - complainant. (ii) Two Cheques being Cheque Nos. 12733 and 12734 of IDBI Bank dated 03/05/2018 for Rs. 2 Crores each in favour of Shrimati Kamuben @ Kamlaben Desai - wife of the complainant. (iii) One Cheque being No. 12735 of IDBI Bank dated 21/05/2018 for Rs. 1.5 Crores in favour of Shri Somabhai Sartanbhai Desai - complainant. (iv) Two Cheques being Cheque Nos. 12736 and 12741 of IDBI Bank dated 03/05/2018 for Rs. 1.5 Crores and 50 Lakhs respectively in favour of Shrimati Kamuben @ Kamlaben Desai - wife of Complaint. (viii) Moreover, it is further alleged that the aforesaid cheques when deposited were dishonoured. Furthermore, when one cheque being Cheque No. 012375 of IDBI Bank dated 21/05/2018 of Rs. 1,50,00,000/- (Rupees One Crore and Fifty Lakhs) was deposited by the respondent No. 2- complainant on 21/05/2018, the said cheque was dishonou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eing Regular Civil Suit No. 7 of 2018 before the learned Senior Civil Judge, Ahmedabad (Rural). Moreover, as stated hereinabove, the respondent No. 2- complainant and his wife have impleaded the petitioners herein as defendant Nos. 1 to 6, and the original owners of the land as defendant Nos. 7 to 21. Furthermore, the partners of the partnership firm Shri Siddhivinayak Associates who are arraigned as accused Nos. 1 to 8 in the present Criminal Case and who have allegedly issued the cheques are not impleaded as party respondents in the said suit and no relief is sought against them. 7.2. Learned advocate Mr. Hakin further submits that after bi parte hearing, vide order dated 30/07/2019, the learned Senior Civil Judge, Ahmedabad (Rural) rejected the application Exhibit 5 of the respondent No. 2- complainant and his wife. It is further submitted that for dishonour of Cheque No. 12736 and Cheque No. 12741 dated 21/05/2018, the wife of respondent No. 2 has filed Criminal Case No. 6457 of 2018. Moreover, for dishonour of Cheque No. 12731 and 12732, the respondent No. 2- complainant has preferred Criminal Case No. 12050 of 2018. However, in the said Criminal Case, vide order dated 09/10/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ursory glance upon the contents of the complaint, in that event, it would be found out that present petitioners are also involved in the offence. They have actively participated and at their instance complainant had entered into business transaction with accused Nos. 1 to 8 and complainant is taken into trap by accused Nos. 1 to 8 and rest of the accused persons have directly or indirectly facilitated the main accused persons knowing fully well that the intention of the accused Nos. 1 to 8 is not pure and clear and there are all possible chances that the complainant would be duped by the accused Nos. 1 to 8, even though, they have supported accused Nos. 1 to 8 and taken the complainant into confidence to carry out business transaction and under the influence of the said favour provided by the present petitioners complainant had entered into said transaction. Therefore, present petitioners are equally responsible in the said offence. Learned advocate Mr. Gohil has candidly accepted that present petitioners are neither the partners of the partnership firm nor the signatories of the instruments in question. Learned advocate Mr. Gohil further submits that to prove the charges levelled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the considered view that proceedings initiated under Section 138 of the Negotiable Instruments Act against the petitioners are nothing but sheer abuse of process of the Court and while passing the order of issuance of process against the petitioners, the learned Court concerned has committed an error, which warrants interference by this Court. 10. It is also pertinent to note that respondent No.2 and his wife have also filed one suit before the concerned Court against the present petitioners and others and in the said suit original accused Nos. 1 to 8 are not impleaded as party and no relief is sought against them. It is not in dispute that original accused No.6 is the authorized signatory of accused No.1 - partnership firm i.e. Shri Siddhivinayak Associates and accused nos. 2 to 8 are the partners of the said partnership firm. The accused No.6 has signed the instruments in question, which were dishonoured. The complainant is not in a position to dispute the fact that petitioners are not the partners of the said partnership firm and they are not the signatories of the instruments in question. On the contrary, the said fact is clearly found out from the complaint of the complainant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns, who were in-charge and responsible for the conduct of the business of the partnership firm at the relevant time when the offence was committed. It is also pertinent to note that complainant and his wife preferred four complainants of similar nature against the accused persons which are pending before different Courts. However, out of the said four complaints, in two complainants, another Court passed order of issuance of process against the original accused Nos. 1 to 8 only (partnership firm and its partners) and in two complaints in question, the learned Trial Court has passed the orders, whereby process came to be issued against all the accused persons including the present petitioners also. Thus, in the instant case, when the petitioners are neither the partners nor the signatories of the instruments in question, prosecution instituted against them is nothing but sheer misuse of process of the Court and the learned trial Court has overlooked the said important aspect and committed an error while issuing process against the petitioners for the offence punishable under Section 138 of the Negotiable Instruments Act. Thus, without going into the further details of the matter, on ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
