IMPORTANT POINT
Where business is carried on by a Joint Hindu Family and cheque has been drawn by a member thereof all the members of the Joint Family can be roped into as drawer of the cheque.

V.R. Kingaonkar, J —Challenge in this revision petition is to judgment dated 19.6.06 rendered by learned 1st ad hoc Additional Sessions Judge, Dhule, in Criminal Revision Application No. 61/2006 whereby and whereunder process issued against respondent Nos. 1 and 2 for offence punishable under Section138 of Negotiable Instruments Act vide order dated 20.8.2005 by learned Judicial Magistrate (F.C). Dondaicha, came to be quashed.

2. The petitioner is a Co-operative Bank. An amount of Rs.15,00,000 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 respondent Nos. 1 and 2 and their son. All the three (3) members of the undivided Hindu family are the members of the Co-operative Bank. They gave post dated cheques of Rs.15,00,000 each on 22.2.2005. One of the cheques bearing No.067702 was to be encashed on 15.3.2005 and another cheque bearing No.067703 was to be encashed on 24.3.2005. Both the cheques were signed by accused No.2 Sheetal for and on behalf of his parents and the business firm. Both the cheques were dishonoured. Though demand notice was issued to the firm or joint family business concern, accused No.2 Sheetal and the respondent Nos. 1 and 2, yet, the amounts were not paid. The respondent No.2 gave reply to the notice on 18.5.2005 wherein the liability was impliedly admitted, but nothing was paid. Consequently, after stipulated period, the criminal complaint case was instituted by the petitioner for offence punishable under Section 138 of the Negotiable Instruments Act.

3. The learned Judicial Magistrate considered verified statements of PW Jitendrasing in support of the complaint and heard learned Advocate for the petitioner. He issued process for offence under Section 138 of the Negotiable Instruments Act against all the four (4) accused, including the respondent Nos.1 and 2.

4. Aggrieved by the order of issuance of process, the respondent Nos.1 and 2 preferred Criminal Revision Application No. 61/2006 in the Court of Sessions at Dhule. The learned 1st ad hoc Additional Session 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 from copy of the certificate issued by the Shop Inspector, Dhule on 2.4.2005 that the shop styled as M/s New Shettal Traders was closed with effect from 1.4.2005 as per application submitted by accused No.2 Sheetal. He would submit that accused No.2 Sheetal has gone underground to avoid the liability. He would submit further that the demand notice was issued to all the members of the joint family with categorical assertion that it was their joint business and all of them were liable to repay the loan amount. It is contended that the question as to whether joint liability will be established or not is required to be decided after the regular trial. Mr. Kapadia further submitted that the expression “or association of individuals” as appearing in Section 141 of the Negotiable Instruments Act wou