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2004 DIGILAW 578 (GUJ)

Kanubhai J. Patel v. STATE OF GUJARAT

2004-08-31

C.K.BUCH

body2004
C. K. BUCH, J. ( 1 ) XXX xxx xxx ( 2 ) XXX xxx xxx ( 3 ) XXX xxx xxx ( 4 ) HAVING considered the contents of the present Revision Application, especially page 13 (Annexure-A) and on perusal of the zerox copy of the cheque in question shown to the Court today by the learned counsel appearing for the petitioners-orig. accused Nos. 2 and 3, it accused Nos. 2 and 3, it appears that for the alleged transaction the cheque in question was signed and issued by the orig. accused no. 1-Bhadresh K. Patel. It is submitted by the petitioners that there is no positive averment or even indirect allegation in the complaint that any one of the present petitioners-orig. accused Nos. 2 and/or 3 was in-charge of and was responsible to the firm for the conduct of the business of the firm at the relevant point of time. Of course, there is some strength in the say of respondent No. 2-orig. complainant that both the petitioners were partners of the firm and doing business in the name and style of shrinath Polymers. The orig accused no. 1-Bhadresh has signed the cheque in question in the capacity of one of the partners. ( 5 ) PLACING reliance on the decision of bombay High Court (Panaji Bench), reported in 1994 Company Cases 487, in the case of Rajan, Kinnerkar v. Eric cordeiro and another, it is argued by Mr. Bhatt that a complaint normally should not be quashed and set aside at an early stage merely on the ground that the accused was not a director of the company at the time when the cheque was presented. The bombay High Court in the cited decision has held that the complainant must be given an opportunity to lead evidence as to the status of the accused persons shown in the complaint. ( 6 ) XXX xxx xxx ( 7 ) IN support of their submissions, the petitioners have mainly placed reliance on the ratio of the decision in the case of k. P. G. Nair v. M/s. Jindal Menthol India ltd. , reported in 2001 SCCr. R. 27. The attention of the Court is drawn to relevant paragraph Nos. 6 and 18 of the cited decision. , reported in 2001 SCCr. R. 27. The attention of the Court is drawn to relevant paragraph Nos. 6 and 18 of the cited decision. The Court has also considered the ratio of decision in the case of Katta sujatha (Smt.) v. Fertilizers and Chemicals travancore Ltd. and another. Mr. Vyas has mainly placed reliance on the decision of ; this Court while dealing with Criminal revision Application Nos. 46/2004 and 47/ 004, in the case of Kartik Kiritbhai Parekh v. State of Gujarat, decided on 17th June, 2004 and submitted that keeping the ratio : in the background of the decision in the case of Priti Rholnagarwala v. State of gujarat and others, reported in 2002 (1) glr 293 , the petitioners should not be compelled to face the prosecution of a serious offence on the bald statement made in the complaint and where there is no allegation or averment in the complaint that both or any of the petitioners were concerned with the day-to-day business of the firm or were aware about issuance of cheque in question. It is rightly submitted by Mr. Vyas that the ratio of the decision in the case of Kartik Parekh (supra) would apply to the present case. ( 8 ) IN view of the nature of submission advanced by Mr. Vyas, the alternative arguments advanced by Mr. Bhatt shall have to be accepted, wherein he has rightly, submitted that as observed by this Court in the case of Kartik Parekh (supra), the present respondent No. 2-orig. complainant should be given a permission to lead evidence and to implicate both or any one of the petitioners as accused praying appropriate relief under Section 319 of the code and if the complainant is able to lead evidence to the prima facie satisfaction of the Court that both or any one of the petitioners was concerned with the business and especially the day-to-day business of the firm and they were aware about the issuance of cheque in question. The date of alleged retirement from the partnership firm is not relevant as undisputedly the cheque in question was given in the capacity of a partner, so the liability of the accused no. 1 ;who has signed the cheque is also confirmed. I would like to reproduce the relevant observation, made by this Court in also signed the cheque is also confirmed. 1 ;who has signed the cheque is also confirmed. I would like to reproduce the relevant observation, made by this Court in also signed the cheque is also confirmed. I would like to reproduce the relevant observations made by this court in the case of Kartik Parekh (supra) for the sake of brevity and convenience. According to this court, paragraph no. 12 of the cited decision is relevant, which is as under : "12. The say of the respondent no. 2 orig. complainant is that the claim of section 141 creates vicarious liability and it would be wrong to infer that the other i Directors or partners were not aware about the actual available fund in a particular bank Account from which the Company has issued cheques of the amount of more than Rs. 50 lakhs or one crorc. So the learned Magistrate while issuing process cannot be said to have committed any error either of law or of fact and, therefore, the order of issuance of process should be treated as a simple order of interlocutory in mature. One of the arguments advanced before this Court is that the order of issuance of process is interlocutory in nature and. therefore, the proceedings in the nature of Criminal Revision would not lie in view of the statutory bar of sub-section (2) of Section 397 of the Criminal procedure Code. But this argument is not found attracted and an accused, if he is able to convince the Revisional Court, the complainant under certain vague allegations or without making any specific categorical statement in the complaint or even in the verification recorded by the learned magistrate before issuing process, should not force the accused to face the criminal proceedings and such an accused can also pray thai as and when the Court receives any evidence involving the accused in the crime or the complainant is able to lead any evidence under which a reasonable inference can be drawn about either constructive or vicarious liability of a particular accused, at that stage he can be joined as an accused in view of Section 319 of the Criminal Procedure Code. ( 9 ) XXX xxx xxx ( 10 ) XXX xxx xxx ( 11 ) XXX xxx xxx .