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2003 DIGILAW 738 (MP)

Motilal Sharma v. Omprakash Kulshrestha

2003-05-19

SUBHASH SAMVATSAR

body2003
JUDGMENT This order shall govern the disposal of Misc. Cri. Cases Nos. 2383/02, 2384/02, 2385/02, 2386/02, 2387/02, 2388/02, 2389/02, 2390/02 and 2391/02. All these petitions are filed under section 482 of the Code of Criminal Procedure for quashing the criminal proceedings pending against the present applicant for committing offence under section 138 of the Negotiable Instruments Act (hereinafter for short called as Act) and challenging of the order dated 8.12.2001 passed by JMFC, Morena, whereby he took the cognizance of the offence and order dt. 21.6.2002 rejecting the revision challenging the order of JMFC, Morena. The facts of the case are that the respondent No.1 has filed a criminal complaint against the present applicant and three other persons alleging that M/s. Motilal Sharma and Company is a Partnership Firm and Navneet Sharma, Motilal Sharma and Manoj Sharma are the partners in the said firm. One Navneet Sharma has barrowed a sum of Rs. 10,00,000/- for the business of the firm. Said Navneet Sharma is a partner of the said firm and for payment of the said debts has issued a Cheque of Rs. 10,00,000/in the name of the firm. The cheque was issued on 19.12.1996 against Zila Sahkari Kendriya Bank Maryadit, Morena. The said cheque was dishonoured and information to that effect was given to the complainant-respondent No.1 on 14.2.1997. A notice of dishonouring of cheque was issued on 20.2.1997, and as the respondent failed to pay the said amount, the present proceedings were initiated under section 138 of the Act. The Court took cognizance of the offence u/s 138 of the Act. Against this order, a revision was preferred before the revisionsl Court, which was also dismissed. Hence, the present petitions were filed challenging the order of the revisional Court as well as of the trial Court taking cognizance of the offence. The first contention raised by the counsel for the applicant is that the cheque was issued by Navneet Sharma, and therefore, the Court should not have taken cognizance against the present petitioner and the Partnership Firm. From the perusal of the cheque, it appears that the cheque is issued on behalf of the Firm. It is not disputed that the cheque Book used for issuing the cheque is also that of a Partnership Firm. From the perusal of the cheque, it appears that the cheque is issued on behalf of the Firm. It is not disputed that the cheque Book used for issuing the cheque is also that of a Partnership Firm. Section 141 of the Act provides that if a cheque is issued on behalf of a Company, then the all persons, who are responsible for the conduct of the business of the company, can be tried for committing the offence u/s 138 of the Act. The Explanation to the said section lays down that the "company" means any body corporate and includes a firm or other association of individuals. Thus, if a cheque is issued on behalf of the firm, then all the partners of the Firm are liable to be prosecuted for committing the offence u/s 138 of the Act. The Explanation to the said section lays down that the "company" means any body corporate end encludes a firm or other association of individuals. Thus, if a cheque is issued on behalf of the firm, then all the partners if the Firm are liable to be prosecuted for committing offence u/s 138 of the Act. The next question raised by the counsel for the applicant is that for the repayment of loan the cheque is issued as time barred, and therefore, the loan is legally irrecoverable. At the time taking cognizance of the offence, the allegation made in the complaint nowhere shows that the said cheque is issued against a time barred debt. The objections filed by the present applicant on 12.9.2001 objecting the taking of cognizance also do not disclose the fact that on what date, the loan was taken by the present applicant. Hence, at this stage, it cannot be said that the said cheque was issued for repayment of any loan in absence of the debt on which date alleged loan was advanced. Thus prima facie it appears that offence u/s 138 of the Negotiable Instruments Act is made out and the J.M.F.C. has rightly taken cognizance of the offence. Considering all these facts, this Court does not find this case fit for interference u/s 482, CrPC at this stage. The petitions are, therefore, dismissed.