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2007 DIGILAW 992 (PNJ)

V. v. Enterprises VS Bansal Industries

2007-04-25

A.N.JINDAL

body2007
JUDGMENT A.N. Jindal, J.:- Crl.Misc.1898 of 2007 Dismissed. Crl.Misc.No.4654-M of 2006 2. M/s V.V. Enterprises, 576, Industrial Area, Phase II, Chandigarh, has preferred this petition under Section 482 Cr.P.C. through Vinay Kumar Saxena son of J.P. Saxena and by Vinay Saxena in his individual capacity for quashing the complaint dated 18.10.2003 (Annexure P-6)and summoning order dated 12.12.2003 (Annexure -7), passed in the aforesaid complaint filed under Section 138 of the Negotiable Instruments Act (hereinafter referred to as ‘the Act’), on the allegations that the petitioners have nothing to do with the affairs of the firm and has not issued the cheque in question.The complaint in question is an abuse of process of the Court and continuation of the proceedings against him will amount to misuse of the process of law. It is not disclosed as to how the petitioner Vinay Kumar Saxena is in charge and responsible for the affairs of the firm. It was Vijay Kumar who issued the cheque and he is looking after the affairs of the firm and was responsible for the same. 3. Reply to this petition has been filed by the respondent wherein it was contended that the evidence of the complainant has already started and out of 9 witnesses, 2 witnesses have already been examined. The Court at this stage is not required to go into the veracity, truthfulness or falsity of the witnesses. The petitioners have not come to the Court with clean hands. The petitioner No.2 and his co-accused Vijay Kumar has misused the concession of bail granted by the trial Court. As a matter of fact, the partnership deed executed on 2.4.2002 between the petitioner and his co- accused clearly indicates that both the partners shall be entitled and liable to profit and loss in equal shares. Huge amount of Rs.86455/-is involved in the case and both Vijay Kumar and Vinay Kumar being the partners of the firm are equally responsible for the act of the firm and vicariously liable, therefore, he prayed for the dismissal of the petition. 4. I have heard Mr. Rakesh Bhatia, learned counsel for the petitioner N.2, Mr. Kapil Aggarwal, learned counsel for the respondent and perused the records of this case with their able assistance. 5. 4. I have heard Mr. Rakesh Bhatia, learned counsel for the petitioner N.2, Mr. Kapil Aggarwal, learned counsel for the respondent and perused the records of this case with their able assistance. 5. Section 141 of the Act govern the responsibility of the person for the offence committed by him, which reads as under :- “141.Offences by companies – (1)If the person committing an offence under Section 138 is a company, every per on who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the busine of the company, as well a the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded again t and punished accordingly: Provided that nothing contained in this sub-section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence: Provided further that where a person is nominated a as Director of a company by virtue of hi holding any office or employment in the Central Government or State Government or a financial corporation owned or controlled by the Central Government or the State Government, a the case may be, he shall not be liable for prosecution under this Chapter. (2) Notwithstanding anything contained in sub-section (1), where any offence under this Act ha been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation -For the purpose of this section, - (a)”company “ means any body corporate and include a firm or other association of individual ;and (b)”director” , in relation to a firm, mean a partner in the firm.” 6. There is no dispute with the proposition as discussed in case S.M.S. Pharmaceuticals Ltd.vs.Neeta Bhalla and another, 2005(4)RCR (Criminal)141 , wherein it was observed that the person in charge and responsible for conducting business at the relevant time are guilty of the offence along with the company itself. There is no dispute with the proposition as discussed in case S.M.S. Pharmaceuticals Ltd.vs.Neeta Bhalla and another, 2005(4)RCR (Criminal)141 , wherein it was observed that the person in charge and responsible for conducting business at the relevant time are guilty of the offence along with the company itself. Now examining the instant case in the light of the aforesaid judgment, it will be appropriate to reproduce the relevant para of the complaint regarding responsibility of both the partners. In this connection, Para No.11 of the complaint is reproduced as under :- “11.That the accused firm is a partner hip firm and both accused No.2 and 3 are it partner and are responsible for doing its day to day business and are looking after the business personally and as such, both the partners are arrayed as accused in the present complaint along with the accused firm.” 7. Partnership deed, Annexure P-1, produced on the record also reveals that both the partners will be entitled to loss and profit in the ratio of 50:50.Similarly, the impugned order of summoning passed by the trial Court, Annexure P-7, also refer to a specific findings, wherein the trial Court prima facie observed that “both the partners along with firm are responsible for doing its day to day business and are looking after the business personally.” 8. It would be pertinent to mention here that the accused firm M/s V.V. Enterprises, 576, Industrial Area, Phase II, Chandigarh, through the petitioner No.2 Vinay Kumar preferred the present petition and the said petition was withdrawn qua the firm which was represented through Vinay Kumar i.e. petitioner No.2, vide order dated 24.1.2006, therefore, Vinay Kumar petitioner No.2 could not be said to be the sleeping partner. 9. The learned counsel for the petitioner has emphasized to examine certain documents at this stage of summoning, but I observe that the Court at the stage of summoning is to prima facie examine the complaint and documents before it as produced by the complainant and to find out prima facie case for summoning the accused is made out or not. The learned counsel for the petitioner has fairly conceded that the goods are still lying with them which fact goes a long way to prove that the goods are still with accused. The learned counsel for the petitioner has fairly conceded that the goods are still lying with them which fact goes a long way to prove that the goods are still with accused. The complaint under Section 138 of the Act was rightly maintained and the order of summoning being speaking one could not be interfered at this stage and the accused if wanted to advance any defence by pleading that Vijay Saxena was the person responsible or that the goods were rejected and the respondent was not entitled to get the cheque encashed are the pleas to be raised at the time of defence. It may further be observed that in the complaint some of the evidence has already been recorded and the complaint is likely to be concluded at an early date and necessary directions could be issued to the trial Court to dispose of the complaint within a stipulated period and in order to further safeguard the rights of the petitioner No.2 Vinay Saxena, his personal appearance could be exempted for certain dates. In the wake of the aforesaid discussions, finding no merit in the petition, the same is hereby dismissed. However, the trial Court is directed to dispose of the complaint within six months from the date of receipt of the copy of the order and the Court would be at liberty to exempt the presence of Vinay Saxena-petitioner No.2 on any date as it deems appropriate but this direction will not give absolute right to the accused to apply for exemption. —————————————