Punjab-Haryana High Court
Smt. Shakti Bhakoo Wife Of Sh. Ashok ... vs Varun Khamka Son Of Shri Anand Kumar ... on 11 February, 2003
Equivalent citations: III(2003)BC24
Author: R.C. Kathuria
Bench: R.C. Kathuria
JUDGMENT R.C. Kathuria, J.
1. Smt. Shakti Bhakoo, petitioner seeks quashing of the complaint dated 2.5.2000 (Annexure-P.5) filed by the respondent under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the Act) and the summoning order dated 17.7.2000 (Annexure-P.6) passed by the Judicial Magistrate Ist Class, Ludhiana and the subsequent proceedings taken therein.
2. In order to decide the controversy, a few facts which led to the filing of the complaint against the petitioner need to be noticed. Varun Khamka, complainant is the proprietor of his firm M/s Falita Enterprises, Bazar Kharadian, Ludhiana. Annop Bhakoo and his wife Smt. Shakti Bhakoo arrayed as accused Nos. 2 and 3 in the complaint had been running a partnership business under the name and style of M/s Sutlej Knitwear having their office at 228-A, Industrial Area 'A', Ludhiana, arrayed as accused No. 1 in the complaint. The aforesaid concern through accused Nos. 2 and 3 had been dealing with the complainant (respondent herein). Accused No. 1 through accused Nos. 2 and 3 had been purchasing yarn from the firm of the complainant. In order to discharge the liability for the yarn purchased by accused No. 1, cheque No. 148197 dated 8.11.1999 for Rs. 25,000/- drawn on Central Bank of India, Ludhiana was issued by Anoop Bhakoo, accused No. 2 in the presence of Smt. Shakti Bhakoo in favour of the complainant. In the presence of Smt. Shakti Bhakoo, accused No. 2 had assured the complainant that the cheque would be encashed on presentation in the bank. Acting on this assurance, the cheque in question was presented on 9.11.1999 through the bank for encashment and collection but it was returned as unpaid. The complainant apprised accused Nos. 2 and 3 about the fate of the cheque, who made a request to the complainant to present the cheque again in the last week of March 2000. The cheque was again presented on 29.3.2000 for encashment within the period of its validity but the Central Bank of India returned the cheque as unpaid vide memo dated 29.3.2000 for the reasons stated as "Exceeds arrangements" which meant there were insufficient funds in Account No. 200001 of accused No. 1 maintained by accused No. 2 with the bank. On receipt of intimation from the bank, a demand notice in terms of the requirement of Section 138-B of the Act was sent to accused No. 1 on 8.4.2000 to make the payment of the due amount within 15 days but the accused managed to secure a false report on the notice and therefore another demand notice through registered post was sent. In spite of the demand made no payment was made. Hence, the complaint was filed.
3. In support of the allegations made in the complaint, the complainant appeared as PW-1 and produced on record documents viz. original cheque Ex.P.1, memo dated 9.11.1999, Ex.P.2, memo dated 29.3.2000 Ex.P.3, carbon copy of demand notices Ex.P.4 to Ex.P.6, postal receipts of the registered mail Ex.P.7 to Ex.P.9, original inland letters through which demand notices were sent to each of the accused individually Ex.P.7 to Ex.P.9 and original inland letters through which the demand notices were sent Ex.P.10 to Ex.13. Taking into account oral as well as documentary evidence, the learned Judicial Magistrate Ist Class, Ludhiana summoned accused Nos. 2 and 3 to face trial under Section 138 of the Act as per his order dated 17.7.2000. Hence, this petition for quashing of the complaint and the summoning order.
4. None appeared on behalf of the petitioner-accused at the time of arguments. I heard counsel representing the respondent-complainant.
5. I have gone through the grounds taken in the petition. It is manifest from the facts stated in the petition that quashing of the complaint dated 2.5.2000 and the summoning order dated 17.7.2000 have been sought on behalf of the petitioner primarily on the ground that the petitioner is only a sleeping partner in the partnership concern and was not actively engaged with the activities and business of the said firm and for that reason she could not be prosecuted in the complaint filed. It was also stated by her that she was neither signatory to the cheque nor the bank record showed that she had signed the cheque in due course of the transaction with the respondent and as such no material was available to link the petitioner with the crime within the ambit of provisions of Section 141 of the Act. Additionally, it was stated that the cheque in question was issued in lieu of security and there was no intention on the part of the co-accused of the petitioner to create debt or liability so as to attract the provisions of Section 138 of the Act. In support of the stand taken, copy of partnership deed dated 14.1998 has been placed on record.
6. Opposing the petitioner's stand it was urged by the counsel representing the respondent that the petitioner along with her brother-in-law, Anoop Bhakoo had been managing the affairs of the firm M/s Sutlej Knitwear, located in Industrial Area, Ludhiana and both of them had approached the complainant for supply of yarn and in order to discharge their liability a cheque for Rs. 25,000/- was issued on 8.11.1999 in the name of the firm. It was also pointed out by him that as per partnership Form-'A' of the firm of the accused, the petitioner had been shown as one of the partners and not sleeping partner as maintained by her. Copy of Form-'A' maintained by the Registrar of Firms (Annexure-R.1) has been placed on record. It was also contended by him that the petitioner had raised disputed question of fact which needs to be decided during the trial of the case and not in these proceedings. In support of the stand taken, he had placed reliance on unreported judgment of the Apex Court bearing Criminal Appeal Nos. 630-631 of 2002 (arising out of SLP (Crl.) Nos. 6730/2001), M/s Raj Lakshmi Mills v. Shakti Bhakoo, decided on July 8, 2002, wherein, the facts were that M/s Raj Lakshmi Mills, appellant had filed a criminal complaint against Smt. Shakti Bhakoo, respondent as well as her brother-in-law, Anoop Bhakoo, as well as under Section 138 of the Act because of dishonour of cheque which had been issued by M/s Sutlej Knitwears of which Anoop Bhakoo and Shakti Bhakoo were partners. Against the summoning order passed by the Magistrate, the respondent filed a petition under Section 482 Cr.P.C. after the respondent's application for discharge was unsuccessful. The High Court invoked the provisions of Section 141 of the Act and came to the conclusion that the respondent was not incharge or responsible for the conduct of the business, therefore, the order summoning her was bad in law. While accepting the petition filed by M/s Raj Lakshmi Mills, it was laid down by the Hon'ble Supreme Court as under:-
"We are of the opinion that at the stage of summoning when evidence was yet to be led by the parties, the High Court could not on an assumption of facts come to a finding of fact that the respondent was not responsible for the conduct of the business. On this ground alone, these appeals are allowed and the impugned decision of the High Court is set aside."
7. The position of law explained in the above mentioned case is fully applicable to the fats of the present case. Definite allegations had been made by the complainant in para 2 of the complaint that accused Anoop Bhakoo and Smt. Shakti Bhakoo have been running partnership concern, namely, M/s Sutlej Knitwear and are responsible for the business and conduct of the accused firm. It is also stated by him that he had business dealings with both the above named accused who had been purchasing yarn from the firm of the complainant representing accused firm. It is further alleged in para 3 of the complaint that at the time cheque in question was issued to discharge the liability towards the amount due to the firm of the complainant both the accused were present and they had assured the complainant regarding encashment of the cheque issued in his favour. Thus, there is no doubt that clear allegations have been made in the complaint filed by the complainant with regard to active involvement of the petitioner-accused in the business of the accused firm. Form-'A' issued by the Registrar of Firms under Rule 5 framed under Section 59 of the Indian Partnership Act, 1932, annexed with the reply filed on behalf of the respondent further shows that from 1.4.1998 onwards Smt. Shakti Bhakoo had been recorded as partner of the firm. A copy of the partnership deed dated 9.11.1995 (Annexure-R.5) has also been placed on record on behalf of the respondent. In this partnership deed it has been recorded that Anoop Bhakoo and Smt. Shakti Bhakoo are intended to enter into engagement on behalf of the firm. The question whether this partnership deed was superseded by the partnership deed dated 1.4.1998 has to be decided during the trial of the case and not in these proceedings under Section 482 of the Code because the question of facts cannot be adjudicated in these proceedings.
8. With regard to the other stand taken on behalf of the petitioner, the position of law is well settled because at the initial stage the test to be applied is whether uncontroverted allegations made in the complaint and the evidence recorded at the preliminary stage of the enquiry prima facie bring out the case within the ambit of Section 138 of the Act. Applying the above parameters to the present case, it cannot be said that no foundation had been laid in the complaint and the preliminary evidence led on behalf of the complainant to show the involvement of the petitioner-accused in the commission of the crime.
9. For the aforesaid reasons, there is no merit in the petition and the same is dismissed.