Khushaboo Narayan Hemnani And ANR v. Sai Kripa Stationer, Nashik Through The Prop. Raj Jyoti Uttam Singh And ORS

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION (APL) NO. 223/2021 KHUSHABOO NARAYAN HEMNANI AND ANR.

} APPLICANTS V/S.

SAI KRIPA STATIONER, NASHIK THROUGH THE PROP. RAJ JYOTI UTTAM SINGH AND ORS.

} RESPONDENTS * * * * Mr. Sachin Gite, Advocate for the applicants. Mr. Sandeep Shinde i/by. Mr. Mayuri Karekar, Advocate for respondent no.1.

Mr. A.R. Patil, APP for State-respondent no.2. Coram : Sandeep K. Shinde, J.

Tuesday, 21st December, 2021.

P.C. :

1.

Heard Mr. Gite, learned Counsel for the applicants, and Mr. Shinde, learned Counsel for respondent no.1.

2.

Applicants have been prosecuted for an offence punishable under Section 138 of the Negotiable

2/4 Instruments Act in Summary Criminal Case No. 6870/2018 filed by the proprietor of M/s. Sai Kripa Stationer (respondent no.1) herein. In the said case, learned 6th Judicial Magistrate First Class, issued process on 1st February, 2019. This order is assailed in this application. 3.

Mr. Gite, learned Counsel for the applicants, on instructions, does not press the application on behalf of petitioner no.2-Miss. Geetika Narayan Hemnani-accused no.3. As such, petition is dismissed as against petitioner no.2.

4.

In so far as petitioner no.1 is concerned, she is the daughter of petitioner no.2. She has been arraigned as accused, as a partner of M/s. Satguru Buildcon. Mr. Gite, learned Counsel for the applicant, would rely on the partnership deed dated 17th December, 2009 to contend that, petitioner no.1 is or was not a partner of M/s. Satguru Buildcon at any point of time. Additionally, Mr. Gite, would rely on the income tax returns, of M/s. Satguru Buildcon, to contend that, statement of particulars furnished by M/s. Satguru Buildcon in Form No.3CB under Section 44AB of the Income Tax Act, 1969 does not show that, petitioner

3/4 no.1 was a partner of M/s. Satguru Buildcon. Mr. Gite, would therefore urge that, petitioner no.1 has been arraigned as accused, erroneously.

5.

Contradicting the arguments of Mr. Gite, learned Counsel for the respondent, Mr. Shinde submitted that, material on record, distinctly suggests active participation of the petitioner no.1 in the day-to-day business affairs of M/s. Satguru Buildcon, which according to Mr. Shinde, is evident from the Retirement Deed, which has been witnesseth by the petitioner no.1. I do not find substance in this submission. It is rejected.

6.

Thus, in consideration of the facts of the case, it is to be held that, petitioner being not a partner of M/s. Satguru Buildcon (drawer of the cheque) has been arraigned in subject case wrongly and improperly. In that view of the matter, the petition is partly allowed. As a result, the proceedings in Summary Criminal Case No.6870/2018 pending before the learned Judicial Magistrate First Class, Nashik, are quashed as against accused no.5.

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Petition is allowed in the aforesaid terms and disposed of.

(Sandeep K. Shinde, J.) Digitally signed by NEETA SHAILESH SAWANT Date:

2021.12.22 17:11:46 +0530 NEETA SHAILESH SAWANT