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SCR.A/302/2008 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 302 of 2008
TO
SPECIAL
CRIMINAL APPLICATION NO. 305 OF 2008
==========================================
SHRUIT
SANJAY KANABAR - Applicant(s)
Versus
STATE
OF GUJARAT & 3 - Respondent(s)
==========================================
Appearance
:
MR TEJAS M
BAROT for Applicant(s) : 1,
Ms Falguni Patel
PUBLIC PROSECUTOR for Respondent(s) : 1,
NOTICE UNSERVED for
Respondent(s) : 2,
MR FB BRAHMBHATT for Respondent(s) : 3 -
4.
==========================================
CORAM
:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 08/08/2008
ORAL
ORDER
1. Rule.
Learned Additional Public Prosecutor Ms Falguni Patel waives service
of rule.
2. All
these petitions are preferred by the petitioner by invoking powers
under section 482 of the Code of Criminal Procedure, to quash and set
aside the proceedings of Criminal Cases No. 9056 of 2004, 9057 of
2004, 8563 of 2004, 8564of 2004 pending in the Court of Learned
Judicial Magistrate, 2nd Court Ahmedabad (Rural) qua the
petitioner by placing reliance on the decision of the Supreme Court
in the case of Raghu Lakshminarayanan Vs. Fine Tubes reported in
(2007)5 Supreme Court Cases 103 and submitted that provisions of
the Section 141 of the Negotiable Instruments Act 1881 are not
attracted in so far as the proprietary concern is and only a person
who guaranteed payment will be solely responsible for conduct of
its affairs.
3. Learned
advocate appearing for the petitioner has drawn my attention to para
9 of the decision which reads as under.
The
description of the accused in the complaint petition is absolutely
vague. A juristic person can be a company within the meaning of the
provisions of the Companies Act, 1956 or a partnership within the
meaning of the provisions of the Partnership Act, 1932 or an
association of persons which ordinarily would mean a body of persons
which is not incorporated under any statute. A proprietary concern,
however, stands absolutely on a different footing. A person may
carry on business in the name of a business concern, but he being
proprietor thereof, would be solely responsible for conduct of its
affairs. A proprietary concern is not a company. Company in terms of
the Explanantion appended to Section 141 of the Negotiable
Instruments Act, means any body corporate and includes a firm or
other association of individuals. Director has been defined to
mean a relation to a firm, a partner in the firm. Thus, whereas in
relation to a company, incorporated and registered under the
Companies Act, 1956 or any other statute, a person as a Director
must come within the purview of the said description, so far as a
firm is concerned, the same would carry the same meaning as
contained in the Partnership Act.
4. It
is further submitted by the learned advocate for the petitioner that
in para 14 the Apex Court has held that it is trite that the
proprietary concern would not answer the description of either a
company incorporated under the Companies Act or a firm within the
meaning of the provisions of Section 4 of the Partnership Act.
5. Learned
advocate appearing for private respondent No.2 is unable to
dispute the above proposition of law.
6. Considering
the facts and circumstances of the case the ratio laid down by the
Apex Court in the above decision of Raghu Lakshminarayanan (supra),
is applicable to the facts of the present case. The petitioner
herein cannot be permitted to be prosecuted in the impugned
proceedings of the different criminal cases pending before the Court
of learned Judicial Magistrate First Class, Ahmedabad. In view of the
above section proposition of law I am of the view that the impugned
proceedings in each of the criminal cases are hereby quashed and set
aside qua the petitioner herein and it will be open for concerned
Court to proceed in the case in accordance with law. These petitions
are allowed to the aforesaid extent. Rule is made absolute
accordingly.
(Anant
S. Dave,J.)
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