Sarojben Ashwinkumar Shah Etc vs State Of Gujarat & Anr

3. For the sake of brevity and convenience, we shall refer to the facts from the appeal arising from complaint (Criminal Case 1 no. 1132 of 1999) pending in the Court of Judicial Magistrate First Class, Prantij. Respondent no. 2--Gulamnabi Hebatkhan Sumara

- filed a complaint against (i) M/s. Rashmi Builders, a partnership firm, (ii) Ashwinkumar Tribhovandas Shah and (iii) Chandravadan Gopaldas Thakkar in the Court of Judicial Magistrate, First Class, Prantij. It was alleged in the complaint that M/s. Rashmi Builders (Accused No. 1) is a duly registered partnership firm and Ashwinkumar Tribhovandas Shah (Accused No. 2) and Chandravadan Gopaldas Thakkar (Accused No. 3) are its partners. On the recommendation and advise of one Balkabhai alias Himatlal Dwarkadas Lal, a financial broker, the complainant lent and advanced a sum of Rs. 5 lakhs to the firm. The firm through its partner Ashwinkumar Tribhovandas Shah acknowledged the receipt of the said amount and also executed and delivered a promissory note for Rs. 5 lakhs on the same date. Later in discharge of its liability, the firm through its partner (Accused No. 2) issued a cheque for Rs. 5 lakhs drawn on the Federal Bank of India, Fort Branch, Bombay and delivered the same to Balkabhai alias Himatlal Dwarkadas Lal who handed over the said cheque to the complainant along with the promissory note. The complainant presented the said cheque for encashment on May 31, 1999 with his Banker but the same was dishonoured on June 3, 1999 with the remark "account closed". The complainant 2 then sent a statutory notice of 15 days to the firm and its two partners which was received by them on or about June 23, 1999. The accused failed and neglected to make payment within the statutory period and instead in its reply dated June 29, 1999, the firm denied having entered into any financial transaction with the complainant. The complainant thus alleged that the accused have committed offence under Section 138 of the Negotiable Instruments Act, 1881 (for short, `N.I. Act') and under Section 420 and Section 114 of the Indian Penal Code. The other complaints were lodged by Usmanmiya Nanumiya Ghori, Mohamad Umarkhan Akbarkhan Ghori and Daudbhai Rasulbhai Mansuri against the above three accused on the identical facts.

4. The Judicial Magistrate, First Class, Prantij took cognizance in the above complaints against the three accused, namely, (i) M/s. Rashmi Builders (a partnership firm), (ii) Ashwinkumar Tribhovandas Shah and (iii) Chandravadan Gopaldas Thakkar.

5. On November 4, 1999, the complainant in each of the complaints made an application under Section 319 of the Code of Criminal Procedure, 1973 (for short, `the Code') for joining Paresh Lakshmikant Vyas and Sarojben Ashwinkumar Shah (appellant herein) as Accused Nos. 4 and 5 respectively. It was averred that Accused Nos. 2 and 3 have submitted a copy of the registration of 3 the firm--M/s. Rashmi Builders (Accused No. 1) wherein the proposed Accused No. 4 and Accused No. 5 have been shown as the partners of the firm and in this view of the matter, it was prayed that complainant may be permitted to join them as accused.

6. The Judicial Magistrate First Class, Prantij, as noted above, has directed that Paresh Lakshmikant Vyas and Sarojben Ashwinkumar Shah (appellant herein) be joined as Accused Nos. 4 and 5 and the High Court maintained such direction.

(viii) The court must, therefore, appropriately consider the above aspects and then exercise its judicial discretion.

18. Consequently, these appeals are allowed and the impugned order dated May 5, 2010 is set aside. Criminal Miscellaneous Application Nos. 5157 of 2000, 5158 of 2000, 5159 of 2000 and 5160 of 2000 are restored to the original number for hearing and reconsideration by the High Court in accordance with law.