TMI Blog2008 (8) TMI 1023X X X X Extracts X X X X X X X X Extracts X X X X ..... and 2 for offence punishable under Section 138 of the Negotiable Instruments Act vide order dated 20th August, 2005 by learned Judicial Magistrate (F.C.), Dondaicha, came to be quashed. 2. The petitioner is a Cooperative Bank. An amount of Rs. 15 lacs was borrowed for and on behalf of M/s New Sheetal Traders. The petitioner - Bank filed a private complaint case (S.T.C. No. 311/2005) in the Court of Judicial Magistrate (F.C.) at Dondaicha against M/s New Sheetal Traders, Sheetal Ramesh Jain and the respondent Nos. 1 and 2. There is no dispute about the fact that original accused No. 2 Sheetal is the son of respondent Nos. 1 and 2. The petitioner asserted that M/s New Sheetal Traders is a firm of Undivided Hindu Family (UHF) of the respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns Judge held that the respondent Nos. 1 and 2 are neither partners of M/s New Sheetal Traders nor are signatories of the cheques in question and, hence, were not liable to be summoned under the order of the learned Magistrate. He held that the respondent Nos. 1 and 2 are not shown to be concerned with the firm styled as M/s New Sheetal Traders. It is only a proprietary firm run by original accused No. 2 Sheetal Jain. So, the issuance of process against the respondent Nos. 1 and 2 was held as illegal and hence, came to be quashed. 5. Heard learned Counsel for the parties and learned A.P.P. 6. Mr. Kapadia, would submit that the respondent Nos. 1 and 2 could not be prematurely absolved from the criminal liability. He would point out fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ereof. It is further asserted in the complaint that M/s New Sheetal Traders is joint family concern of which the respondent Nos. 1 and 2 are co-partners, and all of them are members of the Cooperative Bank/petitioner. The respondent Nos. 1 and 2 are the parents of original accused No. 2 Sheetal. There is absolutely nothing on record to show that they have separated from accused No. 2 Sheetal by way of partition. Whether the business of M/s New Sheetal Traders is run only by accused No. 2 Sheetal as sole proprietor or that it is a joint family business can be determined only after the full dressed trial. At a premature stage, the process could not be quashed against the (6) respondent Nos. 1 and 2, merely because there is no registered partn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... like a company or firm. When it is specifically alleged that the respondent Nos. 1 and 2 are the joint proprietors/owners of the business of M/s New Sheetal Traders, which is a joint family business of themselves and their son - Sheetal, prima facie, they are covered under Section 141 of the Negotiable Instruments Act in view of the Explanation appended thereto. 11. In Baskar v. Muthuswamy (2001) 106 Comp Cas 489 a Bench of Madras High Court held that where there were positive allegations in the complaint that the accused was partner of the firm, but he denied his such status on strength of extracts from Register of Firms, it was improper to go into evidence at the premature stage. It was held that the true state of affairs could only be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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