IMPORTANT POINT
(1) Partnership comes into existence, by means of a contract between partners, whereas, a joint Hindu family arises as a result of status.
(2) Where a definition uses the word “includes”, as contrasted from means, the word defined not only bears its ordinary, popular and natural meaning, but in addition also bears the extended statutory meaning.
(3) A mere combination of individuals will not constitute an “association of individuals” in terms of Section 141, N.I. Act. It is absolutely necessary that the combination of individuals must be on their own free will and volition.

1. By this writ application under Article 226 of the Constitution of India, the writ applicant has prayed for the following reliefs:-

“8(A) Your Lordships be please to quash and set aside the criminal case no.22 of 2014 pending before the learned Chief Judicial Magistrate Court, Patan in the interest of justice.

(B) Pending hearing and final disposal of this application, Your Lordships be pleased to stay the further proceedings of the criminal case no.22 of 2014 pending before the learned Chief Judicial Magistrate Court, Patan in the interest of justice.

(C) Such other and further relief which your Lordships deem fit may kindly be granted in the interest of justice.”

2. The case of the complainant may be summarised as under:-

2.1 The complainant is one Kanaiyalal Dhirajlal Popat, serving as a 'Manager' of Dhirajlal Pranjivandas Popat, H.U.F. The H.U.F. is carrying on business and is running a firm in the name of 'D. Pranjivandas and Sons'. It is the case of the complainant that the accused herein is a member of an H.U.F. running in the name of 'R.J. Shah', H.U.F. The accused is the 'Karta' of the 'R.J. Shah', H.U.F.. The accused Nos.2 and 3, in the complaint, are the members of the H.U.F. being the wife and son of the 'Karta'. In connection with a business transaction with the complainant, the accused, in his capacity as the 'Karta' – 'Manager' of the R.J. Shah, H.U.F. issued a cheque dated 15th September 2013 for the amount of Rs.5,00,000/- (Rupees Five Lac only) in favour of the complainant drawn on the Sardargunj Mercantile Cooperative Bank, Market Yard, Patan. The cheque in question drawn by the accused in favour of the complainant came to be dishonoured, as the funds were insufficient in the account maintained by the H.U.F.. In such circumstances, a statutory Notice under Section 138 of the Negotiable Instruments Act (for short, the “N.I. Act”) dated 21st November 2013 was served upon the accused persons by the complainant. As the amount was not paid by the accused within the statutory time period, the complainant filed a private complaint in the Court of the learned Chief Judicial Magistrate, Patan for the offence punishable under Section 138 of the Negotiable Instruments Act, which came to be registered as the Criminal Case No.22 of 2014.

3. The accused, being the 'Karta' of the H.U.F., is here before this Court, praying for quashing of the proceedings of the criminal case.

SUBMISSIONS ON BEHALF OF THE ACCUSED:

4. Mr. Amit R. Joshi, the learned counsel appearing for the accused submitted that his client is a member of the H.U.F. and is the 'Karta' – 'Manager'. The H.U.F. is engaged in the business of trading. The name of the firm is 'M.S. Traders'. It is submitted that a H.U.F. is a legal entity and will constitute an association of individuals within the meaning of Section 141 of the N.I. Act. In such circumstances, according to the learned counsel, without impleading the H.U.F., as a legal entity or a juridical person as one of the accused in the complaint, the member/'Karta' of the H.U.F. alone cannot be prosecuted for the offence punishable under Section 138 of the N.I. Act.

5. The learned counsel submitted that the 'Karta' of the H.U.F. is not the owner of the firm, and therefore, the H.U.F., a legal entity i.e. as an association of individuals, has got to be arraigned as an accused so as to make the prosecution of the members of the H.U.F. maintainable for the offence punishable under Section 138 of the N.I. Act. He submitted that the H.U.F., being a legal entity, is a juristic person and a separate entity from the coparcener. The 'Karta' of the H.U.F. exists because of the H.U.F. Otherwise, the 'Karta' has no legal existence, and the prosecution of the 'Karta' is not maintainable under Section 138 of the N.I. Act in the absence of the H.U.F.

6. The learned counsel submits that a H.U.F. is included in the expression “person”, as defined in the Income Tax Act, 1961. As a H.U.F., being the principal offender, has no