Research › Search › Judgment

Madhya Pradesh High Court · body

2011 DIGILAW 1002 (MP)

Naresh Kumar v. Prabhabai

2011-08-26

G.D.SAXENA

body2011
ORDER G.D. Saxena, J. 1. This revision petition under Section 397/401 of the Code of Criminal Procedure, 1974 preferred by the Petitioner/accused is directed against an order dated 4th June, 2010 passed in Criminal Case No. 914/2007 by the Judicial Magistrate First Class, Ganj Basoda, District Vidisha, rejecting thereby a petition for recalling process issued by the Trial Court. 2. The brief facts, just for the decision of this revision petition, are that accused Sanjay Mahalwar being a Partner of firm named "Pyarelal Tarachand Mahalwar" Ganj Basoda issued a cheque No. 1366904, dated 30th July, 2006 for a sum of Rs. 1,12,000/- and a cheque No. 1481590, dated 20th October, 2006 for a sum of Rs. 1,12,000/-, to be drawn at Bhopal Regional Gramin Bank, Branch Basoda, in favour of the complainant against a borrowed money received by him for the need of the business of the said firm as well as for his personal ground. When the complainant presented these two cheques for encashment-at the bank, same were returned for want of sufficient fund in, the account of the holder. Then, the complainant sent a legal notice to the Petitioner-accused, through registered A/d post. Despite service of notice, the accused did not bother to pay the amount. Consequently, the complaint against the firm and its partners was filed before the Trial Court under Section 138 of the Negotiable Instruments Act in which cognizance has been taken against the Petitioner-accused for the alleged offence. Being aggrieved by the said order, the Petitioner filed a petition under Section 482 of Code of Criminal Procedure (Misc. Cr. Case No. 3460/2009) before this Court and by an order dated 23rd September, 2009, this Court disposed of the same with the following directions: From perusal of the record, it is clear that upon a complaint by Respondent, learned Trial Court has taken cognizance against the Petitioner by the impugned order. In such circumstances, petition is disposed of with a direction that the Petitioner shall move an application before the Trial Court wherein he shall mention all the facts regarding the innocence. If such application is filed by the Petitioner then the learned Trial Court after hearing the Respondent, shall pass a reasoned order in accordance with law. 3. In such circumstances, petition is disposed of with a direction that the Petitioner shall move an application before the Trial Court wherein he shall mention all the facts regarding the innocence. If such application is filed by the Petitioner then the learned Trial Court after hearing the Respondent, shall pass a reasoned order in accordance with law. 3. It is contended by the learned Counsel appearing for the Petitioner that in compliance with the directions aforesaid of this Court, the Petitioner filed an application before the Trial Court concerned, which was rejected under the order impugned, hence, this revision. 4. The contention of the learned Counsel for the Petitioner is that the impugned order passed by the Trial Court is manifestly illegal and against the principles of natural justice. It is submitted by the Counsel that as per averments of the complaint the questioned cheques were signed and issued by Sanjay Mahalwar, Partner of the Firm. The said firm was in the sole proprietorship of one Late Tara Chand Mahalwar and after his death, the business of the firm was under the control of Sanjay Mahalwar, therefore, the Petitioner is not at all responsible for the deeds of Sanjay Mahalwar, Partner of the Firm. Hence, it is prayed that the order dated 4th June, 2010 passed by the Trial Court be quashed and the Petitioner be discharged of the alleged offence. 5. Per contra, the learned Counsel appearing on behalf of Respondent supported the impugned order under revision and requested to dismiss the revision being found without substance. 6. Heard the learned Counsel for the parties. Also perused the documents and certified/photo copies of the orders filed with the revision for consideration by the parties and the law applicable to the case. 7. On perusal of the complaint case, it appears that accused Sanjay Mahalwar, the Partner of Firm, "Pyarelal Tarachand Mahalwar", received Rs. 2,24,000/- on credit for the need of the business of the said firm as well as for his personal ground from the complainant. For discharging the liability of the said loan, accused Sanjay Mahalwar issued duly signed in the capacity of Partner and under the seal of the Firm Pyarelal Tara Chand two cheques Nos. 1366904 and 1481590 each for sum of Rs. 1,12,000/- to be drawn at Bhopal Regional Gramin Bank Branch Basoda. For discharging the liability of the said loan, accused Sanjay Mahalwar issued duly signed in the capacity of Partner and under the seal of the Firm Pyarelal Tara Chand two cheques Nos. 1366904 and 1481590 each for sum of Rs. 1,12,000/- to be drawn at Bhopal Regional Gramin Bank Branch Basoda. When both these cheques were presented for collection, same were returned with a note "Insufficient fund in account". Consequently, notices were sent to the Firm through all of its partners by registered post. After receipt of notices, the cheque amount was not paid to the complainant nor was the reply to the notice submitted. On perusal of the cheques, it seems that the cheques were issued under the seal of Firm "Pyarelal Tara Chand Proprietor" duly signed by Sanjay Mahalwar. It is admitted that in the complaint the averments about the Partnership Firm and the names of the Petitioner and Ors. as Partners of the said Firm were mentioned. It is said that the sole Proprietor Tara Chand Mahalwar died and after his death, the Firm came under the control of said Sanjay Mahalwar. It is true that notices to Firm and its partners were sent as per law. The copy of the Ledger Savings Bank Account issued by the concerning bank clearly shows that said savings bank account was in the name of M/s P.T. Mahalwar (Proprietor Tara Chand Mahalwar). In compliance with the directions issued by this Court in Misc. Cri. Case No. 3440/2009, certain documents were filed before the Trial Court. Those documents, on perusal, also show that the business of the Firm, after death of the sole Proprietor Tara Chand Mahalwar, was continued by the heirs of the deceased but there is no document filed on record showing that the Petitioner had no connection with the Firm or the accused Sanjay Mahalwar, who was discharging Proprietorship in place of his predecessor-deceased Tara Chand Mahalwar. 8. Section 141(2) starts with a non obstante clause. 8. Section 141(2) starts with a non obstante clause. Under Sub-section (1) of Section 141, the person in charge of and responsible to the company shall be deemed to be guilty of the offence, but under Sub-section (2) even persons who are not stated to be in charge of and responsible to the company can be prosecuted if it is alleged and proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of any of those persons prosecuted. Hence, a bare perusal of Sub-section (1) of Section 141 of the Act makes it clear that when the offence is alleged to have been committed by a Firm, every person who at the time the offence was committed, was in charge of and was responsible to the Firm for conduct of its business as well as the Firm shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished. 9. In the case of S.V. Muzumdar v. Gujarat State Fertilizer Co. Ltd. 2005 (4) M.P.H.T. 163 (SC) : AIR 2005 SC 2436 : 2005 AIR SCW 2364, the Apex Court held: We find that the prayers before the Courts below essentially were to drop the proceedings on the ground that the allegations would not constitute a foundation for action in terms of Section 141 of the Act. These questions have to be adjudicated at the trial. Whether a person is in charge of or is responsible to the company for conduct of the business is to be adjudicated on the basis of materials to be placed by the parties. Sub-section (2) of Section 141 is a deeming provision which as noted supra operates in certain specified circumstances. Whether the requirements for the application of the deeming provision exist or not is again a matter for adjudication during trial. Similarly, whether the allegations contained are sufficient to attract culpability is a matter for adjudication at the trial. 10. In the case of Harshendra Kumar D. v. Rebatilala Koley and Ors. Whether the requirements for the application of the deeming provision exist or not is again a matter for adjudication during trial. Similarly, whether the allegations contained are sufficient to attract culpability is a matter for adjudication at the trial. 10. In the case of Harshendra Kumar D. v. Rebatilala Koley and Ors. (2011) 3 SCC 351 , the Apex Court held: It is not the law that in a criminal case where trial is yet to take place and the matter is at the stage of issuance of the summons or taking cognizance, material relied upon by the accused which are in the nature of public documents or the materials, which are beyond suspicion or doubt, in no circumstance, can be looked into by the High Court in exercise of its jurisdiction under Section 482 or for that matter in exercise of its jurisdiction under Section 397 of the Code. It is fairly settled now that while exercising inherent jurisdiction under Section 482 or revision jurisdiction under Section 397 of the Code in a case where complaint is sought to be quashed it is not proper for High Court to consider the defence of the accused or embark upon inquiry in respect of merits of the accusations. 11. It appears that the Petitioner has been involved in the alleged offence on the basis of his being one of the Partners of the said Firm. A specific notice had been issued to all of the partners including the present Petitioner, but he had not even sent a reply stating that he was only a sleeping partner or dominant partner and not in charge of management, control or conduct of the business or having any responsibility in the management and administration of the company. On the other hand, it is specifically mentioned in the complaint that they all were responsible for the non-payment of the cheque amount after receipt of notice within the statutory period. The provision of Section 141 of the Act postulates that every person in charge of the company is also responsible for the offence. The question whether he or she is not such person responsible for the offence is a question of fact to be proved at the stage of trial. The provision of Section 141 of the Act postulates that every person in charge of the company is also responsible for the offence. The question whether he or she is not such person responsible for the offence is a question of fact to be proved at the stage of trial. At this juncture, the Petitioner/accused by cogent and reliable evidence could not get success to prove that at relevant time he was not the Partner of the Firm Pyarelal Tarachand Mahalwar. 12. In the result, this revision petition fails and is hereby dismissed.