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2011 DIGILAW 842 (GUJ)

Shantaben Motichannd Maru v. State of Gujarat

2011-12-19

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 petitioners - original accused Nos. 3 and 4 to quash and set aside the impugned complaint being Criminal Case No.6912 of 2006 filed by the original complainant - respondent No.2 under section 138 read with Section 141 of the Negotiable Instruments Act, pending in the court of learned 10th Judicial Magistrate (First Class), Jamnagar. 2. The respondent No.2 herein - original complainant has lodged the impugned complaint being Criminal Case No.6912 of 2006 under section 138 read with section 141 of the Negotiable Instruments Act, in the court of learned Chief Judicial Magistrate, Jamnagar for dishonour of the cheque No.249196 dated 15/5/2006 which was admittedly issued by the original accused No. 1 - Partnership Firm and signed by the original accused No. 2 as Partner of the original accused No.1 - Partnership Firm. In the said complaint, the learned Magistrate has directed to issue process against the petitioners - original accused Nos. 3 and 4 and others for the offences punishable under section 138 read with section 141 of the Negotiable Instruments Act. Hence the petitioners - original accused Nos.3 and 4 have preferred the present petition under section 482 of the Code of Criminal Procedure. 3. Mr.Nitin Amin, learned advocate appearing on behalf of Ms.Amee Yagnik, learned advocate appearing on behalf of the petitioners - accused Nos.3 and 4 has vehemently submitted that as such the petitioners have not committed offence under section 138 read with section 141 of the Negotiable Instruments Act, as alleged. It is alleged in the complaint that the cheque in question was issued by the accused No.1 - Partnership Firm, signed by the accused No.2 on 15/5/2006 and the same was dishonoured on 31/8/2006. It is submitted that as such the petitioners - original accused Nos.3 and 4 have already resigned/retired as Partners of the accused No.1 Partnership Firm way back on 1/5/2001. He has also produced on record the Deed of Retirement of the petitioners - original accused Nos.3 and 4, as Partners of the accused No.1 Partnership Firm, at Annexure-B to the petition. The factum of resignation/retirement of the the petitioners - original accused Nos.3 and 4, as partners of the accused No.1 Partnership Firm on 1/5/2001 has not been disputed by the original complainant - respondent No.2 herein. The factum of resignation/retirement of the the petitioners - original accused Nos.3 and 4, as partners of the accused No.1 Partnership Firm on 1/5/2001 has not been disputed by the original complainant - respondent No.2 herein. Therefore, relying upon the decision of the Hon'ble Supreme Court in the case of Harshendra Kumar D. v. Rebatilata Koley, etc. reported in 2011 (1) NIJ 228 (SC) : AIR 2011 SC 1090 it is requested to allow the present petition and to quash and set aside the impugned complaint so far as the petitioners herein - original accused Nos.3 and 4 are concerned. 4. Ms.P.J. Joshi, learned advocate appearing for Mr.A.B. Vyas, learned advocate appearing on behalf of the respondent No.2 - original complainant is not in a position to dispute the aforesaid facts. She is also not in a position to dispute that there there is no denial to factum of resignation/retirement of the petitioners herein - original accused Nos. 3 and 4 as Partners of the original accused No.1 - Partnership Firm on 1/5/2001, as contended by the petitioners herein. Therefore, it is submitted by her that in case this Court is inclined to quash and set aside the impugned complaint so far as the petitioners herein - original accused Nos.3 and 4 herein are concerned, it may be suitably observed that the same shall be without prejudice to the rights and contentions of the original complainant - respondent No.2/prosecution against the other accused persons and the trial court may be directed to proceed with the trial against the other accused in accordance with law and on merits and without in any way being influenced by the present order which is passed qua the petitioners herein - original accused Nos.3 and 4 only. 5. Mr.LB Dabhi, learned Additional Public Prosecutor has requested to pass appropriate order in the facts and circumstances of the case. 6. Heard the learned advocates appearing on behalf of the respective parties at length. 7. At the outset, it is required to be noted that the cheque dated 15/5/2006 in question which is dishonoured, is issued by the accused No.1 Partnership Firm and signed by the accused No.2. 6. Heard the learned advocates appearing on behalf of the respective parties at length. 7. At the outset, it is required to be noted that the cheque dated 15/5/2006 in question which is dishonoured, is issued by the accused No.1 Partnership Firm and signed by the accused No.2. It is specific case on behalf of the petitioners that they had already retired as Partners of the accused No.1 - Partnership Firm way back on 1/5/2001, copy of the Deed of Retirement/Resignation is produced at Annexure-B. The original complainant has not disputed and/or is not disputing the above and the case on behalf of the petitioners that they have resigned/retired as Partners of the accused No.1 Partnership Firm way back on 1/5/2001. Under the circumstances, the case on behalf of the petitioners herein so pleaded in the present petition that they have retired/resigned as Partners of the accused No.1 Partnership Firm way back on 1/5/2001, is required to be accepted. 8. 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. It is further held by the Hon'ble Supreme Court in the said decision that criminal liability accused must be determined on the date of the offence alleged to have been committed. The aforesaid decision would be applicable to the Partnership Firm and Partners of the Partnership Firm also. 9. In the present case, as stated above the resignation/retirement of the petitioners - accused Nos.3 and 4 as Partners of the accused No.1 Partnership Firm on 1/5/2001 has not been disputed and/or denied by the respondent No.2 - original complainant. 10. Under the circumstances and considering the decision of the Hon'ble Supreme Court in the case of Harshendra Kumar D. (supra), to continue the criminal proceedings against the petitioners herein - original accused Nos. 3 and 4 herein would be unnecessary harassment to them and the same would be abuse of process of law and court. 10. Under the circumstances and considering the decision of the Hon'ble Supreme Court in the case of Harshendra Kumar D. (supra), to continue the criminal proceedings against the petitioners herein - original accused Nos. 3 and 4 herein would be unnecessary harassment to them 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 petitioners herein - original accused Nos.3 and 4 only. 11. In view of the above and for the reasons stated above, present petition succeeds. The impugned complaint being Criminal Case No.6912 of 2006 filed by the respondent No.2 - original complainant under section 138 read with section 141 of the Negotiable Instruments Act, pending in the Court of learned 10th Judicial Magistrate (First Class), Jamnagar is hereby quashed and set aside QUA petitioners herein - original accused Nos. 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 petitioners herein - original accused Nos.3 and 4 only. Rule is made absolute to the aforesaid extent. Petition succeeds.