Delhi High Court
K.N. Shamshuddin vs State & Others on 21 April, 2009
Author: S.Muralidhar
Bench: S.Muralidhar
IN THE HIGH COURT OF DELHI AT NEW DELHI
Crl M C No. 3380 of 2008
K.N. SHAMSHUDDIN ..... Petitioner
Through: Mr. Amit Mahajan with Mr. Manik Dogra,
Advocate
versus
STATE & ORS. ..... Respondents
Through: Mr. Jaideep Malik, APP for State.
Mr. Rajeev Shukla, Advocate for R-2.
HON'BLE DR. JUSTICE S.MURALIDHAR
1. Whether Reporters of local papers may be
allowed to see the judgment? No
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported Yes
in Digest?
ORDER
21.04.2009
1. This petition under Section 482 of the Code of Criminal Procedure 1973 („CrPC‟) seeks the quashing of Complaint Case No. 62/1 of 2002 titled M/s. Gravs Appliances Pvt. Ltd. v. M/s. Metro Plus & Others pending in the court of the learned Metropolitan Magistrate („MM‟) Delhi under Section 138 of the Negotiable Instruments Act 1881 („NI Act‟) in so far as the Petitioner is concerned.
2. The aforementioned complaint was filed in respect of dishonour of a cheque Crl M C No. 3380/2008 Page 1 of 4 dated 22nd January 2002 in the sum of Rs.1,87,781/- drawn in favour of Gravs Appliances Pvt. Ltd. (complainant) by M/s Metro Plus, a partnership firm. The firm was arrayed as accused No.1, Mr. K.N. Abdul Gafoor described as partner arrayed as accused No.2 and the Petitioner here K.N. Shamshuddin described as a partner of the said firm arrayed as accused No.3.
3. The relevant averment in respect of the Petitioner is contained in para 3 which read as under:
"3. That, the accused no.1 is a Partnership firm and having its showroom at M.G. Road, Near Padma Earnakulam, Cochin. The accused Nos. 2 and 3 are the partners of the accused firm and are responsible for all sort of business affairs of the accused No.1."
4. The contentions of learned counsel for the Petitioner is that the above averment in the complaint does not satisfy the requirement of the law as explained by the Supreme Court in Monaben Ketanbhai Shah v. State of Gujarat (2004) 7 SCC 15 and later in SMS Pharmaceuticals Limited v. Neeta Bhalla (I) (2005) 8 SCC 89.
5. Learned counsel for the Respondent No.2 on the other hand submits that the question whether the Petitioner was in fact a partner and in charge of the business of the partnership firm at the time of the commission of the offence is to be decided only at the trial. He points out that the document of partnership deed dated 16 th June 1997, which does not show the Petitioner to be a partner, or even later the document of registration certificate dated 26th March 2003 which again does not show the Petitioner to be a partner, also cannot be examined at this stage. Crl M C No. 3380/2008 Page 2 of 4
6. In the considered view of this Court the above averment contained the complaint does not satisfy the requirement of law. In Monaben Ketanbhai Shah v. State of Gujarat (2004) 7 SCC 15 it was held by the Supreme Court as under:
"6. ........... Section 141 does not make all partners liable for the offence. The criminal liability has been fastened on those who, at the time of the commission of the offence, were in charge of and were responsible to the firm for the conduct of the business of the firm. These may be sleeping partners who are not required to take nay part in the business of the firm; they may be ladies and others who may not show anything about the business of the firm. The primary responsibility is on the complainant to make necessary averments in the complaint so as to make the accused vicariously liable. For fastening the criminal liability, there is no presumption that every partner knows about the transaction. The obligation of the appellants to prove that at the time the offence was committed they were not in charge of and were not responsible to the firm for the conduct of the business of the firm, would arise only when first the complainant makes necessary averments in the complaint and establishes that fact. The present case is of total absence of requisite averments in the complaint."
(emphasis supplied)
7. Consequently, this petition is allowed and the Petitioner will stand discharged in Complaint Case No. 62/1 of 2002 titled M/s. Gravs Appliances Pvt. Ltd. v. M/s. Metro Plus & Others pending in the court of the learned MM, Delhi under Section Crl M C No. 3380/2008 Page 3 of 4 138 NI Act in so far as the Petitioner is concerned. It is made clear that the complaint will continue against the remaining accused.
8. The petition is disposed of. Order be given dasti.
9. A copy of order be sent to the concerned trial court forthwith.
S.MURALIDHAR, J APRIL 21, 2009 rk Crl M C No. 3380/2008 Page 4 of 4