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2003 DIGILAW 1119 (ALL)

SWARNA KAPOOR v. STATE OF U P

2003-05-08

R.K.DASH

body2003
R. K. DASH, J. ( 1 ) THE criminal misc. application is restored to file. ( 2 ) HEARD Sri Sushil Shukla, Counsel for the petitioner. ( 3 ) THIS petition under section 482 Cr. P. C. is filed assailing the order of the special Metropolitan Magistrate, Kanpur Nagar dated 12. 1. 1998 whereby cognizance was taken under section 138 of the Negotiable instrument Act (in short the Act) and the subsequent order dated 25. 1. 2000 rejecting the prayer to recall the said order passed in complaint case No. 795 of 1999. The sole contention of Sri Sushil Shukla, counsel for the petitioner is that the petitioner is a sleeping partner of m/s. Golden Graphics and she was not looking after day to day affairs of the said firm. Admittedly, post dated cheques were issued by Virendra kumar Anand, one of the accused in the complaint case. So far the petitioner is concerned it is submitted that no allegation is made against her that she was in-charge of and was responsible for day to day business of the firm. Since because she is one of the partners, she cannot be fastened with any criminal liability under section 138 of the Act. ( 4 ) COUNSEL for respondent No. 2 concedes that the complaint petition does not reveal that the petitioner was in-charge of and was respon sible to the firm for the conduct of the business. ( 5 ) IN view of the aforesaid submission, I am of the opinion that prima facie no offence under section 138 of the Act is made out against the petitioner. Learned Magistrate appears to have mechanically taken cognizance of the offence without applying judicial mind. It is well settled by the Apex Court is the case of K. P. G. Nair v. Jindal Menthol India Ltd. , 2002 SCC (Cri.) 1038. that in absence of any averments in the complaint that at the time of commission of the offence, the accused was incharge of and was responsible to the company for the conduct of business, he cannot be prosecuted for the offence punishable under sec tion 138 of the Act. that in absence of any averments in the complaint that at the time of commission of the offence, the accused was incharge of and was responsible to the company for the conduct of business, he cannot be prosecuted for the offence punishable under sec tion 138 of the Act. ( 6 ) DERIVING support from the aforesaid judgment and in view of the admitted fact that there is no allegation against the petitioner that at the relevant time when the alleged offence was committed, she was incharge of and responsible to the firm for the conduct of business, I am of the opinion that the order of Magistrate taking cognizance of the offence so far the petitioner is concerned is unsustainable in law. ( 7 ) ACCORDINGLY, criminal misc. application is allowed and the impugned order of the Magistrate taking cognizance of the "offence under section 138 of the Act in complaint case No. 795 of 1999 against the petitioner is quashed. .