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2011 DIGILAW 838 (GUJ)

Vrajesh Madhubhai Patel v. State of Gujarat

2011-12-16

M.R.SHAH

body2011
JUDGMENT : M. R. Shah, J. Present petition under section 482 of the Code of Criminal Procedure has been preferred by the petitioner - original accused No.4 to quash and set aside the impugned complaint being Criminal Case No.294 of 2009 pending in the court of learned Judicial Magistrate (First Class), Vadodara for the offence punishable under section 138 read with Section 141 of the Negotiable Instruments Act. 2. The impugned complaint being Criminal Case No.294 of 2009 in question is lodged by the respondent No.2 herein - original complainant against the petitioner herein and other accused persons in the court of learned Judicial Magistrate (First Class), Vadodara for the offence punishable under Section 138 read with Section 141 of the Negotiable Instruments Act for dishonour of the Cheque bearing No.076472 dated 6/12/2008 drawn by the accused No.1 Partnership Firm. In the said complaint the learned Magistrate has directed to issue Summons against the accused persons inclusive of the petitioner for the offences punishable under section 138 of the Negotiable Instruments Act. Hence, the petitioner - accused No.4 has preferred the present petition under Section 482 of the Code of Criminal Procedure to quash and set aside the impugned complaint QUA him. 3. Mr.Chirag Patel, learned advocate appearing on behalf of the petitioner - original accused No.4 has submitted that as such the cheque in question was issued by the accused No.1 Partnership Firm and the petitioner herein - accused No.4 was not partner of the accused No.1 Partnership Firm. He has further submitted that as such the petitioner resigned/retired as a Partner of the original accused No.1 Partnership Firm way back in the year 2001 and even the same was intimated to the Registrar of Firm, Baroda Circle, Baroda. Therefore, it is submitted that at the relevant time when the cheque in question was issued, the petitioner herein was not a partner of the original accused No.1 Partnership Firm and therefore, he cannot be held liable for the offence punishable under section 138 of the Negotiable Instruments Act alleged to have been committed by the original accused No.1 Partnership Firm. 4. 4. Mr.Chirag Patel, learned advocate appearing on behalf of the petitioner has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Harshendra Kumar D. v. Rebatilata Koley etc., reported in AIR 2011 S.C. 1090 in support of his above submission and prayer to quash and set aside the impugned complaint so far as the petitioner herein - original accused No.4 is concerned. 5. Mr.P.A. Jadeja, learned advocate appearing on behalf of the respondent No.2 - original complainant is not in a position to dispute the above and the retirement of the petitioner herein - accused No.4 as a Partner of the accused No.1 Partnership Firm, as contended by the learned advocate appearing on behalf of the petitioner - original accused No.4. Therefore, he is not in a position to satisfy this Court as to how the petitioner herein - original accused No.4 can be held to be liable for the offence punishable under section 138 of Negotiable Instruments Act alleged to have been committed by the respondent No.2 - original accused No.1 Partnership Firm for the dishonour of the Cheque dated 6/12/2008 issued by the original accused No.1 Partnership Firm. 6. Mr.L.B. Dabhi, learned Additional Public Prosecutor has requested to pass appropriate order in the facts and circumstances of the case. 7. Heard the learned advocates appearing on behalf of the respective parties at length. 8. It is not in dispute that the impugned complaint has been filed against the petitioner herein - original accused No.4 and other accused person for the offence punishable under section 138 of Negotiable Instruments Act for the dishonour of the Cheque dated 6/12/2008 issued by the original accused No.1 Partnership Firm. It has come on record and it is not disputed that the petitioner herein - original accused No.4 has already retired as a Partner of the accused No.1 Partnership Firm way back in the year 2001 and necessary intimation was also given to the Registrar of Firms, Baroda Circle, Baroda. It has come on record and it is not disputed that the petitioner herein - original accused No.4 has already retired as a Partner of the accused No.1 Partnership Firm way back in the year 2001 and necessary intimation was also given to the Registrar of Firms, Baroda Circle, Baroda. Under the circumstances, when the petitioner herein - original accused No.4 was not the Partner of the original accused No.1 Partnership Firm who issued the cheque in question at the relevant time when the cheque in question was issued, which is dishonoured, the petitioner herein - original accused No.4 cannot be held liable and/or responsible for the dishonour of the cheque in question and for the offence punishable under section 138 of the Negotiable Instruments Act, which is alleged to have been committed by the original accused No.1 Partnership Firm. The controversy in question is squarely covered by the decision of the Hon'ble Supreme Court in the case of Harshendra Kumar D. (supra) wherein the Hon'ble Supreme Court has specifically observed and held that the director whose resignation has been accepted by the Company and that has been duly notified to the Registrar of Companies, such Director cannot be made accountable and fasten with the liability for anything done by the Company after acceptance of his resignation. Similar analogy can be applicable to the Partnership Firm also. 9. Under the circumstances, to continue the criminal proceedings against the petitioner herein - original accused No.4 herein would be unnecessary harassment to him and the same would be abuse of process of law and court. Under the circumstances the impugned complaint deserves to be quashed and set aside QUA petitioner herein - original accused No.4. 10. In view of the above and for the reasons stated above, present petition succeeds. The impugned complaint being Criminal Case No.294 of 2009 pending in the court of learned Judicial Magistrate (First Class), Vadodara is hereby quashed and set aside QUA petitioner herein - original accused No.4 only. However, the same shall be without prejudice to the rights and contention of the complainant/prosecution against other accused persons and the learned trial court to proceed further with the trial against the other accused persons in accordance with law and on merits and without in any way being influenced by the present order which is with respect to petitioner herein - original accused No.4 only. Rule is made absolute to the aforesaid extent. Petition Allowed.