Gujarat High Court
Kesarben Kanjibhai Cham & 2 vs State Of Gujarat & on 11 April, 2014
Author: M.D.Shah
Bench: M.D. Shah
R/CR.MA/12734/2012 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 12734 of 2012
With
CRIMINAL MISC.APPLICATION NO. 12735 of 2012
TO
CRIMINAL MISC.APPLICATION NO. 12742 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE M.D. SHAH
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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KESARBEN KANJIBHAI CHAM & 2....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR PRAVIN GONDALIYA, ADVOCATE for petitioners in all petitions
MR. BHADRISH S RAJU, ADVOCATE for respondent No. 2 in all petitions
MR LR PUJARI, APP for respondent No. 1 in all petitions
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CORAM: HONOURABLE MR.JUSTICE M.D. SHAH
Page 1 of 7
R/CR.MA/12734/2012 JUDGMENT
Date : 11/04/2014
COMMON ORAL JUDGMENT
1. All these Criminal Misc. Applications have been filed to quash and set aside the complaints being Old Criminal Complaint Nos.1011 of 2002(New No.2881 of 2008), 1012 of 2002(New No.2879 of 2008), 431 of 2002(New No.2877 of 2008), 432 of 2002 (New No.2874 of 2008), 433 of 2002 (New No.2876 of 2008), 434 of 2002 (New No.2882 of 2008), 435 of 2002 (New No.2875 2008), 436 of 2002(New No.2880 of 2008), 437 of 2002 (New No.2878 of 2008) filed against the petitioners by the respondent No.2-complainant pending before learned Metropolitan Magistrate, Court No.11, Ahmedabad.
2. All the complaints were filed by respondent No.2-Trident (India) Ltd. It is alleged in the complaints that as part of business, the complainant used to advance money to accused No.1, a partnership firm, in which accused Nos.2 to 6 are partners and they are responsible for the day-to-day affairs of accused No.1 firm. It was also alleged that the money advanced to accused No.1 firm was assured by its partners to be adjusted by purchasing Duty Exemption Pass Book( DEPB) licenses of various values failing which, money would be returned back. As the accused No.1 did not pay up the money advanced, accused No.1 issued nine different cheques of various dates to the tune of Rs.1,90,00,000/-. However, when the said cheques were presented with the bank, same were returned with the endorsement "insufficient funds". Hence, a notice was issued to the accused on 26-4-2002 Page 2 of 7 R/CR.MA/12734/2012 JUDGMENT which was received on 30-4-2002. However, evasive replies were given vide reply dated 8-5-2002 and 9-5- 2002. Hence, nine different complaints were filed for the offences punishable under Section 138 read with section 141 of the Negotiable Instruments Act and same are pending before the learned Metropolitan Magistrate, Court No.11 at Ahmedabad. Hence, the present petitions for quashing.
3. Heard learned advocate, Mr.Pravin Gondaliya for the petitioners, learned APP, Mr.L.R.Pujari for the respondent No.1 and learned advocate, Mr.Bhadrish S.Raju for the respondent No.2 in all the petitions.
4. Rule. Learned APP, Mr.L.R.Pujari for the respondent No.1 and learned advocate, Mr.Bhadrish S.Raju for the respondent No.2 waive service of notice of rule.
5. It is submitted by learned advocate, Mr.Pravin Gondaliya that the petitioners are lady partners having no role in the day-to-day affairs of the firm. It is further submitted that the petitioners are sleeping partners as per Clause 4 of Partnership Deed and were not in charge of and responsible for the conduct of the business of the firm. According to him, a common notice was issued for nine different cheques and no sufficient averments were made against the petitioners in the said notice. It is further submitted that in view of the replies filed by the petitioners stating that they are sleeping partners and not taking active part in the firm, certain averments were added in the complaints as an after thought later on to falsely implicate the petitioners. It is further submitted that application submitted by the petitioners for dropping of charges was allowed, however, when it Page 3 of 7 R/CR.MA/12734/2012 JUDGMENT was challenged in the High Court, said order of dropping of charge was set aside since provisions of Section 258 of Cr.P.C. do not apply to summons triable cases. It is further submitted that in order to attract the provisions of Section 141 of Negotiable Instruments Act to any person other than the signatory to the cheque, it has to be established that the person concerned should be in charge of and responsible to the Company at the time when offence was committed. In this case, it is submitted that petitioners were not at all responsible for the alleged transactions and hence, said provision cannot be applied in the case of petitioners. It is therefore prayed that this Court may exercise its power under Sec.482 of Cr.P.C. by quashing all the complaints qua the petitioners. In this connection, he has relied upon the following reported decisions:
i) 2010(2) G.L.H. 766 in the case of National Small Industries Corporation Ltd. Vs.Harmeet Singh Paintal and Another;
ii) AIR 2010 Supreme Court page 2835 in the case of Central bank of India Vs. Asian Global Ltd. and Lrs.
iii) (2012) 1 Supreme Court Cases page 520 in the case of Anita Malhotra Vs. Apparel Export Promotion Council and Another; and
iv) 2007(1) G.L.H. Page 653 in the case of (Dr.) Rajan Sanatkumar Joshi Vs. Rajnikant Govindlal Shah and Anr.
6. It is mainly submitted by learned advocate, Mr.Bhadrish S.Raju for the respondent No.2 that all the ingredients of offence under Sec.141 read with Sec.138 of Negotiable Instruments Act alleged against the petitioners are Page 4 of 7 R/CR.MA/12734/2012 JUDGMENT clearly established on a bare reading of the complaints. It is further submitted that the contentions raised by the petitioners are their defense which are available to them only at the time of trial. It is further submitted that Clause 4 of Partnership Deed cannot be picked out to suit the petitioners. According to him, clause 9 among other clauses of the Partnership Deed clearly provides all powers to the present petitioners and hence, it is too early to come to any conclusion that the petitioners have no role to play in the alleged transactions. It is further submitted that all those arguments would be available to the petitioners at the time of trial. Section 141 and the judgments of Supreme Court do not require the accused to sign the cheques personally but it merely requires that accused must be in charge of and responsible to the affairs of the firm. As far as the reliance placed by the learned advocate for the petitioners on the cited decisions are concerned, it is submitted that those judgments are misplaced and none of the judgments are applicable to the case of the petitioners. In this connection, he has relied on the decision of Apex Court reported in (2011)3 SCC page 88 in the case of Rallis India Limited Vs. Poduru Vidya Bhushan and others.
7. This Court has gone through the complaints and documents annexed with the complaints together with the decisions relied on by the learned advocates appearing for the respective parties.
8. There cannot be any dispute regarding the principles laid down in the aforesaid decisions relied on by the learned advocates for the respective parties. However, keeping in mind the principles laid down therein, this Page 5 of 7 R/CR.MA/12734/2012 JUDGMENT Court would proceed further.
9. It appears from clause (4) of the Partnership Deed of the accused No.1 that the petitioners are sleeping partners and they do not participate in the administration of the business. However, clause (9) provides for bank accounts of the firm to be maintained as the partners may agree and shall be operated by any of the partners or any person authorised by them. In the present case, it does not appear that the petitioners have operated the bank accounts of the firm at any point of time. Moreover, none of the petitioners being partners appear to have been authorized by the other partners to operate the bank accounts of the accused No.1 firm. Therefore, though clause (9) provides for the accounts of the firm to be maintained as the partners may agree, there is nothing on record to show that they were indulging in the day-to-day affairs of the firm and hence, were in any way responsible for the conduct of the business or in charge of the business at the time when offence was committed. Thus, it is clear that the petitioners were acting as sleeping partners and were not participating in the administration of the firm. Under the circumstances, it can be said that ingredients of offence alleged against the petitioners are prima facie not established requiring them to face the rigors of trial. Since no ingredients of offences alleged against the petitioners are prima facie established, the impugned complaints require to be quashed and set aside qua the petitioners.
10. In view of the above, all these petitions are allowed. The impugned complaints being Old Criminal Complaint Nos.1011 of 2002(New No.2881 of 2008), Page 6 of 7 R/CR.MA/12734/2012 JUDGMENT 1012 of 2002(New No.2879 of 2008), 431 of 2002(New No.2877 of 2008), 432 of 2002 (New No.2874 of 2008), 433 of 2002 (New No.2876 of 2008), 434 of 2002 (New No.2882 of 2008), 435 of 2002 (New No.2875 2008), 436 of 2002(New No.2880 of 2008), 437 of 2002 (New No.2878 of 2008) filed by the respondent No.2- complainant pending before learned Metropolitan Magistrate, Court No.11, Ahmedabad, are hereby quashed and set aside qua the petitioners. Rule is made absolute to the aforesaid extend.
11. It is clarified that since the impugned complaints are quashed only qua the present petitioners, complaints can proceed against other partners and in that case, matters will be decided on its own merits and in accordance with law without being influenced by this common judgment.
12. Office to place a copy of this judgment in each matter.
(M.D.SHAH, J.) RADHAN Page 7 of 7