SCR.A/289/2008 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 289 of 2008 For Approval and Signature: HONOURABLE MS.JUSTICE H.N.DEVANI ===================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ===================================================== VATSAL TRADING CO Versus STATE OF GUJARAT ===================================================== Appearance : MR AR GUPTA for Applicant:1 MR KP RAVAL, ADDL.PUBLIC PROSECUTOR for Respondent:1 ===================================================== SCR.A/289/2008 2/5 JUDGMENT CORAM : HONOURABLE MS.JUSTICE H.N.DEVANI Date : 26/02/2008 ORAL JUDGMENT 1. Leave to amend the prayer clause. 2. Rule. Mr.K.P.Raval, learned Additional Public Prosecutor waives service of notice of Rule on behalf of respondent-State of Gujarat. 3. Having regard to the facts of the case and with the consent of the learned advocates for the parties, the matter is taken up for hearing today. 4. By this petition under Articles 226 and 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973, ('the Code'), the petitioner has challenged the order dated 4th February, 2008 passed by the learned Metropolitan Magistrate, Court No.20, Ahmedabad in Criminal Case No.156 of 2008 to the extent it rejects the complaint against accused No.1,2 and 4 of Criminal Case No.156 of 2008. 5. The facts stated briefly are that the petitioner-original complainant had lodged a complaint under the provisions of Section 138 SCR.A/289/2008 3/5 JUDGMENT read with Section 142 of Negotiable Instruments Act, 1881, ('the Act'), before the learned Metropolitan Magistrate at Ahmedabad in respect of dishonour of cheque against four accused persons. The learned Magistrate vide the impugned order dated 4th February, 2008, has directed issuance of process against accused No.3 alone and has rejected the complaint insofar as accused No.1, 2 and 4 therein, are concerned. Being aggrieved, the petitioner has moved the present petition. 6. Heard Mr.A.R.Gupta, learned advocate for the petitioner and Mr.K.P.Raval, learned Additional Public Prosecutor on behalf of the respondent- State of Gujarat. 7. Mr.A.R.Gupta, learned advocate for the petitioner has drawn the attention of the Court to the decision of the Supreme Court in the case of Raghu Lakshminarayanan Vs. Fine Tubes, (2007) 5 SCC 103, to submit that it is settled law that a proprietary concern is not covered under the provisions of Section 141 of the Code. That, the vicarious liability of persons other than the proprietor would not arise in connection with any offence under Section 138 of the Act. It is, accordingly, submitted that the learned Magistrate was not justified in rejecting the complaint qua the other accused, that too SCR.A/289/2008 4/5 JUDGMENT without assigning any reasons whatsoever. 8. As can be seen from the impugned order dated 4th February, 2008, the learned Magistrate has merely examined the complainant on oath and has observed that considering the statement on oath and the documentary evidence, the complaint is admitted only qua accused No.3 and has directed issuance of process against accused No.3 alone. He has further rejected the complaint insofar as accused No.1, 2 and 4 are concerned. 9. A perusal of the order does not indicate any reasons as to why the learned Magistrate has thought it fit to reject the complaint qua the other accused. The Supreme Court in the case of Raghu Lakshminarayanan (supra) has held that 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 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. 10.Applying the aforesaid principles to the facts of the present case, it is apparent that the learned Magistrate was not justified in SCR.A/289/2008 5/5 JUDGMENT rejecting the complaint qua the proprietor of the proprietary concern. In the circumstances, the interest of justice would best be served if the impugned order dated 4th February, 2008 passed by the learned Metropolitan Magistrate, Court No.20, Ahmedabad in Criminal Case No.156 of 2008, is quashed and the learned Magistrate is directed to consider the matter afresh in the light of the above referred decision of the Supreme Court. 11.For the foregoing reasons, the petition succeeds and is, accordingly allowed. The impugned order dated 4th February, 2008 passed by the learned Metropolitan Magistrate, Court No.20, Ahmedabad in Criminal Case No.156 of 2008, is hereby quashed to the extent it rejects the complaint qua accused No.1, 2 and 4. The learned Magistrate shall consider the matter afresh in the light of the decision of the Supreme Court in the case of Raghu Lakshminarayanan Vs. Fine Tubes, (2007) 5 SCC 103. 12.Rule is made absolute accordingly. Direct Service is permitted. (H.N.DEVANI, J.) Amit/-