1. By way of preferring this application under Section 482 of the Code of Criminal Procedure, 1973, the applicant - original accused No. 2 seeks to invoke the inherent powers of this Court, praying for quashing of the proceedings of Criminal Case No.773 of 2019 pending in the Court of learned Chief Judicial Magistrate, Vyara as well as order dated 09.07.2019 passed by learned Chief Judicial Magistrate, Vyara in Criminal Case No.773 of 2019, whereby process came to be issued against the applicant qua him.

2. The case of the prosecution can be summarized as under:

Thus, the complainant has also joined accused No.2 in the complaint in question.

2.2. As per the case of the complainant, he has deposited the said cheque on 17.05.2019 but due to insufficient fund, the same was returned with an endorsement of 'fund insufficient'. Thus, the complainant issued notice under the provisions of the Negotiable Instruments Act to the accused persons. Thereafter, the complainant lodged complainant under Section 138 of the Negotiable Instruments Act before the Court of Chief Judicial Magistrate, Vyara. The learned Chief Judicial Magistrate, after appreciating the material available on record, was pleased to issue process against the accused persons, which was duly served to the accused persons. As soon as the process came to be issued, applicant has preferred Page 3 of 15 Downloaded on : Thu Jun 20 20:50:55 IST 2024 NEUTRAL CITATION R/CR.MA/16758/2019 ORDER DATED: 18/06/2024 undefined present application.

3. Learned advocate Mr. Oza submits that the applicant has been arraigned as an accused merely because he is the joint account holder along with accused No.1, who has issued the cheque in favour of the complainant and therefore the applicant has wrongly been dragged into the criminal offence by the complainant. He further submits that it is well settled that the joint account holder cannot be prosecuted as he is not directly or indirectly connected with the crime in question. Learned advocate Mr. Ankur Y. Oza submits that the brother of the applicant has borrowed money from the complainant and he has issued a cheque as security. However, as the brother of the applicant was not able to repay the said amount, the complainant has deposited the said cheque, which was returned with an endorsement 'insufficient fund'. The complainant, therefore, after following due procedure, filed a criminal complaint against the brother of the applicant, which was ultimately withdrawn by the complainant in Lok Adalat on the strength of compromise arrived at between the rival parties. As per the case of the complainant, the father of the applicant - accused No.1 has also signed as a witness in the settlement deed executed between the parties. Learned advocate Mr. Oza submits that admittedly the applicant has not signed the said compromise deed as a witness and he was not party to the said compromise deed.

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4. Learned advocate Mr. Oza further submits that as per the case of the complainant, as the brother of the applicant has failed to comply with the terms of the settlement deed, he issued notice through his advocate to accused No.1 - father of the applicant, brother of the applicant and one another person. However, admittedly, the complainant has not issued the said notice to the applicant.

5. Learned advocate Mr. Oza further submits that the cheque, which was returned, was issued by the accused No.1 - father of the applicant and not by the applicant and admittedly at the time of issuance of cheque, applicant was not present. The applicant was not at all aware about the fact of issuance of the cheque by the accused No.1 in favour of the complainant and he came to know only when the process came to be issued by the learned Trial Court. Learned advocate Mr. Oza has put reliance upon the case law of Hon'ble Apex Court in the case of Aparna A. Shah v. Sheth Developers Private Limited , reported in 2013 (8) SCC 71 and more particularly the observations made by the Hon'ble Apex Court in para 13 to 18 of the said judgment . Learned advocate Mr. Oza has also put reliance upon the decision of the Delhi High Court in the case of Gita Berry v. Genesis Educational Foundation , reported in (2008) 151 DLT 155 and submitted that in the said case, in identical set of facts, the Delhi High Court has quashed the proceedings against the petitioner Page 5 of 15 Downloaded on : Thu Jun 20 20:50:55 IST 2024 NEUTRAL CITATION R/CR.MA/16758/2019 ORDER DATED: 18/06/2024 undefined concerned. In the said case, the petitioner was the wife and she filed a petition under Section 482 of the Code of Criminal Procedure, 1973 seeking quashing of the complaint filed under Section 138 of the N.I. Act. The case of the petitioner is that the offence under Section 138 of the N.I.Act cannot be said to have been made out against her only on the ground that she was joint account holder along with her husband and she has pointed out that she has neither drawn nor issued the cheque in question and therefore according to her, the complaint against her was not maintainable. The Delhi High Court, noting the above said argument, held that nothing was elicited to the effect that the petitioner was responsible for issuance of cheque in question and quashed the proceedings so far as the petitioner therein is concerned. Learned advocate Mr. Oza submits that considering the principle of law laid down by the Hon'ble Apex Court as well as Delhi High Court in the aforesaid decisions, proceedings instituted against the applicant accused are required to be quashed as it is nothing but sheer abuse of process of the Court.

6. Learned advocate Mr. Vidit Sharma appearing for the original complainant has objected present application with vehemence and submitted that present applicant accused is one of the joint account holders. He further submits that it is an admitted position of fact that accused no.1 - father of the Page 6 of 15 Downloaded on : Thu Jun 20 20:50:55 IST 2024 NEUTRAL CITATION R/CR.MA/16758/2019 ORDER DATED: 18/06/2024 undefined applicant accused has drawn cheque in favour of the complainant which was dishonoured and as per the statutory provisions of law, more particularly, as per the provisions of Section 141 of the Negotiable Instruments Act, liability of applicant being joint account holder can also be extended and therefore he has been joined as one of the accused in the complaint. He further submits that at the time of recording the verification of the complainant, the learned Trial Court has gone through the provisions of law and thereafter passed the order of issuance of process against the accused persons under Section

204. Thus, considering the above stated factual aspects, it can be said that involvement of the present applicant accused in the commission of crime is clearly found out. Hence, proceedings instituted against the present applicant accused are not required to be quashed and set aside.

7. Learned APP Ms. Monali Bhatt submits that immediately after passing of the impugned order whereby process has been issued against the applicants, the applicants have approached this Court and the Coordinate Bench of this Court has, vide order dated 03.09.2019, reserved liberty in favour of the applicants to file an application for exemption from personal appearance and to seek adjourment before the learned Trial Court on account of pendency of present proceedings. The said interim relief has been extended from time to time and therefore the Page 7 of 15 Downloaded on : Thu Jun 20 20:50:55 IST 2024 NEUTRAL CITATION R/CR.MA/16758/2019 ORDER DATED: 18/06/2024 undefined learned Trial Court is not able to proceed further with the trial. She further submits that the cheque which was dishonoured was issued by the father of the applicant i.e. accused No.1 and the applicant being the joint account holder, he has been arraigned as an accused and therefore it cannot be said that the learned Trial Court has committed any error while passing the impugned order. Therefore, the present application being devoid of merit is required to be rejected.

8. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for consideration of this Court is whether the FIR in question deserves to be quashed.

9. Before adverting to the issue involved in the present matter, at this juncture, I would like to refer to and rely upon the observations made by the Hon'ble Apex Court in the case of Aparna A. Shah (supra), wherein the Hon'ble Apex Court has observed and held as under:

For example, Section 141 of the N.I. Act is an instance of specific provision that in case an offence under Section 138 is committed by a company, the criminal liability for dishonour of a cheque will extend to the officers of the company. As a matter of fact, Section 141 contains conditions which have to be satisfied before the liability can be extended. Inasmuch as the provision creates a criminal liability, the conditions have to be strictly complied with. In other words, the persons who had nothing to do with the matter, need not be roped in. A company being a juristic person, all its deeds and functions are the result of acts of others. Therefore, the officers of the company, who are responsible for the acts done in the name of the company, are sought to be made personally liable for the acts which result in criminal action being taken against the company. In other words, it makes every person who, at the time the offence was committed, was in-charge of, and was responsible to the company for the conduct of business of the company, as well as the company, liable for the offence. It is true that the proviso to sub-section enables certain persons to prove that the offence was committed without their knowledge or that they had exercised all due diligence to prevent commission of the offence. The liability under Section 141 of the N.I. Act is sought to be fastened vicariously on a person connected with the company, the principal accused being the company itself. It is a departure from the rule in criminal law against vicarious liability.

14) It is not in dispute that the first respondent has not filed any complaint under any other provisions of the penal code and, therefore, the argument pertaining to the Page 9 of 15 Downloaded on : Thu Jun 20 20:50:55 IST 2024 NEUTRAL CITATION R/CR.MA/16758/2019 ORDER DATED: 18/06/2024 undefined intention of the parties is completely misconceived. We were taken through the notice issued under the provisions of Section 138 , reply given thereto, copy of the complaint and the order issuing process. In this regard, Mr.Mukul Rohatgi, learned senior counsel for the respondent after narrating the involvement of the appellant herein and her husband contended that they cannot be permitted to raise any objection on the ground of concealing/suppressing material facts within her knowledge. For the said purpose, he relied on Oswal Fats and Oils Limited vs. Additional Commissioner (Administration), Bareilly Division, Bareilly and Others , ( 2010) 4 SCC 728, Balwantrai Chimanlal Trivedi vs. M.N. Nagrashna & Ors. , AIR 1960 SC 1292, J.P. Builders & Anr. vs. A. Ramadas Rao & Anr. , (2011) 1 SCC

429. Inasmuch as the appellant had annexed the relevant materials, namely, copy of notice, copy of reply, copy of the complaint and the order issuing process which alone is relevant for consideration in respect of complaint under Section 138 of the N.I. Act, the argument of learned senior counsel for Respondent No.1 that the stand of the appellant has to be rejected for suppressing of material facts or relevant facts, cannot stand. In such circumstances, we are of the view that the case law relied upon by the contesting respondent No.1 is inapplicable to the facts of the present case.

15) Mr. Mukul Rohtagi, learned senior counsel for respondent No.1, by drawing our attention to the definition of "person" in Section 3(42) of the General Clauses Act, 1897 submitted that in view of various circumstances mentioned, the appellant herein being wife, is liable for criminal prosecution. He also submitted that in view of the explanation in Section 141(2) of the N.I. Act, the appellant wife is being prosecuted as an association of individual. In our view, all the above contentions are unacceptable since it was never the case of respondent No.1 in the Page 10 of 15 Downloaded on : Thu Jun 20 20:50:55 IST 2024 NEUTRAL CITATION R/CR.MA/16758/2019 ORDER DATED: 18/06/2024 undefined complaint filed before learned Magistrate that the appellant wife is being prosecuted as an association of individuals and, therefore, on this ground alone, the above submission is liable to be rejected. Since, this expression has not been defined, the same has to be interpreted ejusdem generis having regard to the purpose of the principle of vicarious liability incorporated in Section 141 . The terms "complaint", "persons"

12. Thus, if the aforesaid observations made by the Hon'ble Apex Court are considered in context with the facts of the present case, in that event, in the opinion of this Court, this is a clear cut case of abuse of process of the Court.

13. For the foregoing reasons, I am inclined to allow this application and the same is accordingly allowed. The impugned order dated 09.07.2019 passed by learned Chief Judicial Magistrate, Vyara in Criminal Case No.773 of 2019 and the proceedings of Criminal Case No.773 of 2019 pending in the Court of learned Chief Judicial Magistrate, Vyara are hereby quashed and set aside qua the applicant.

14. It is needless to say that the aforesaid observations will not come in the way of complainant to prosecute the case against original accused No.1 before the learned Trial Court.

(DIVYESH A. JOSHI,J) LAVKUMAR J JANI Page 15 of 15 Downloaded on : Thu Jun 20 20:50:55 IST 2024