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2012 DIGILAW 242 (BOM)

Shamsunder Dagdulal Marda v. State of Maharashtra

2012-02-02

A.V.NIRGUDE

body2012
Judgment : All petitions can be disposed off by this common judgment. 2. These petitions arose from four criminal cases filed for prosecuting the petitioners in Writ Petition Nos.1719 of 2011, 1720 of 2011, 3407 of 2010 and 3411 of 2010 under Section 138 of Negotiable Instruments Act and the petitioner in Writ Petition No.1616 of 2011 is the complainant in all these cases. The complainant in all these cases alleged that he received four cheques from a firm by name Shyam Spins of which, one Rinku H. Ved was proprietor. She had given Power of Attorney to run the business to one Rohit, who had signed the cheques for the firm. The cheques bounced. Despite notice, the amounts were not paid. So, the complaints were filed against the signatory of the cheques, the proprietary firm of Rinku and four others. These four persons, it is alleged, are family members of the signatory of the cheques. The complainant alleged that all the family members jointly conduct the business and so, they are all liable for the failure of the cheques. 3. The Learned Magistrate refused to issue process against the four accused who are the petitioners in Writ Petition Nos.1719 of 2011, 1720 of 2011, 3407 of 2010 and 3411 of 2010. The complainant went before the Revisional court and the Learned Judge accepted the case of the complainant that the accused who are said to be the relatives of accused Rohit, were party to the transaction, and so the process ought to have been issued against them. In another order passed by the Learned Judge of the Revisional court, he upheld the order of the Learned Magistrate partly, but held further that one Deepak, the brother of the signatory of the cheques, should be retained as accused and process should be issued against him. The Writ Petition Nos.1719 of 2011, 1720 of 2011, 3407 of 2010 and 3411 of 2010 are filed by the accused for challenging the order of issuance of process against them, whereas, the Writ Petition No.1616 of 2011 is filed by the complainant challenging the order dropping the names of the other three family members of accused Rohit. 4. The Writ Petition Nos.1719 of 2011, 1720 of 2011, 3407 of 2010 and 3411 of 2010 are filed by the accused for challenging the order of issuance of process against them, whereas, the Writ Petition No.1616 of 2011 is filed by the complainant challenging the order dropping the names of the other three family members of accused Rohit. 4. The learned counsel appearing for the accused asserted that on facts, which are now disclosed and even on the facts mentioned in the complaints, there was no reason for issuance of process against the accused / petitioners. I think he is right. It is clear that the complainant while drafting these complaints was aware that he was unable to maintain these complaints against the accused other than the signatory of the cheques and the firm. In order to implicate the other accused in the complaints, the complainant asserted that the petitioners also conduct the business jointly. However, the Learned Magistrate could see through this manipulation. It is not mentioned in the complaints as to whether Shyam Spins is a partnership firm or a proprietary concern or a limited company etc. In the complaints, the complainant simply stated that all accused jointly conduct the business in the name of Shyam Spins, being owners of the same. He did not explain as to how and in what capacity, they owned Shyam Spins. 5. When a business concern is made a party of a case of this nature, provisions of Section 141 will apply and it allows filing of such complaints against a company, a firm or association of individuals, including partners in firm. In view of this, when a complaint of this nature is lodged against a business concern, the complainant is under an obligation to explain as to whether the concern is a company or a firm or a proprietary concern. Without giving these details, the complainant vaguely stated that "this concern" is owned by all the accused. The Learned Magistrate before issuing process could have asked him as to what kind of concern it is, whether the accused concern, is a company or a firm etc. Had such question been asked, the complainant would have disclosed that the accused concern is a proprietary firm. Had such information been made available then, the Learned Magistrate would have asked as to why the accused who are not concerned with the firm etc. Had such question been asked, the complainant would have disclosed that the accused concern is a proprietary firm. Had such information been made available then, the Learned Magistrate would have asked as to why the accused who are not concerned with the firm etc. are made party? Even without undertaking such detailed enquiry, the Learned Magistrate could see through the manipulation and rightly refused to issue process. However, this simple logic was not followed by the Learned Addl. Sessions Judge. All, that is stated above, could have been done by him. 6. The Learned Addl. Sessions Judge committed one more, and probably, graver error. He allowed the complainant to file revision applications without making the accused respondents. The revision was filed mainly for challenging the order refusing process against certain persons and if such persons were not made parties to such representations, the Learned Judge ought to have directed the revision applicant to make them party. In my view, even the accused against whom the process was issued ought to have been made a party. Without taking this necessary care, the Learned Addl. Sessions Judge not only entertained the revision, but passed a patently illegal and incorrect order. 7. In view of this, the Writ Petition Nos.1719 of 2011, 1720 of 2011, 3407 of 2010 and 3411 of 2010 stand allowed. 8. The process issued against the petitioners stand dropped, whereas, Writ Petition No.1616 of 2011 also stands dismissed.