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Madhya Pradesh High Court · body

2014 DIGILAW 1676 (MP)

Manish v. K. G. Sharma

2014-12-16

ALOK VERMA

body2014
Judgment Alok Verma, J. 1. This common order shall govern the disposal of M.Cr.C. Nos. 5169/2014 and 5166/2014. These applications under Section 482 of Cr.P.C. are filed for quashment of proceedings arising out of Complaint Case Nos. 29218/2010 and 17960/2010 pending before the learned JMFC, Indore and also for setting aside of the order passed by learned 3rd Additional Sessions Judge, Indore in Criminal Revision Nos. 118/2014 and 117/2014 respectively, dated 27-1-2014. 2. The facts relevant for disposal of these applications are that the respondent filed a complaint under Section 138 of Negotiable Instruments Act against the present applicant as well as his brother Aman Verma for dishonour of three cheques allegedly issued by partnership firm, of which, it was alleged that the present applicant as well as his brother Aman Verma were the partners. According to the averments made in the complaint, three cheques were issued totalling Rs. 7,50,000. 3. These applications involve a short question, whether present applicant-Manish Verma can be made an accused in the complaint, when the cheques were signed by his brother Aman Verma on behalf of Aman Jeweler as proprietor of the concern. 4. According to the present applicant, Aman Jeweler is the sole proprietorship concern and his brother Aman Verma is the sole proprietor of the concern. The cheques under dispute were signed on behalf of sole proprietorship Aman Jeweler of which, his brother is the sole proprietor. 5. An application was filed by the present applicant before the learned Magistrate stating therein, that Aman Jeweler is not a partnership firm, but the sole proprietorship concern, and as such, he is not liable for rights and liabilities of the concern. His brother is the sole proprietor of the concern. As such, he signed the cheques. The learned Magistrate dismissed his application placing reliance on the judgment of Hon'ble Apex Court delivered in the case of Adalat Prasad Vs. Rupalal Jindal, reported in 2004 (4) MPLJ 1, on the ground that after issuing summons, it was not under the power of Magistrate to recall his own order and discharge the present accused. The present applicant then filed a revision against this order. The learned Revisional Court also took the same view and dismissed the revision. Against which, the present applications are filed. 6. The present applicant then filed a revision against this order. The learned Revisional Court also took the same view and dismissed the revision. Against which, the present applications are filed. 6. Under these background, the moot question for consideration in this case is that, whether the present applicant is liable for dishonour of cheques issued and signed by his brother Aman Verma for and on behalf of Aman Jeweler, which according to the present applicant, is the sole proprietorship concern. 7. So far as the principle laid down by Hon'ble Apex Court in the case of Adalat Prasad (supra), is concerned, it is true that Magistrate cannot recall his own order and only after taking evidence, the person against whom, summons were issued, can be discharged. However, these applications are filed under Section 482 of Cr.P.C. and limitation is not applicable on this Court. In this view of the matter, it is to be seen, whether Aman Jeweler was the sole proprietorship concern or it was partnership firm. 8. Learned Counsel for the applicant argues that in the legal notice issued on 11-6-2010, only name of brother of the present applicant Aman Verma was mentioned. Notice was given to the proprietor of Aman Jeweler and name of the present applicant nowhere appears. However, in the complaint, the concern Aman Jeweler was described as accused and the name of the present applicant was also added. He argues that being sole proprietorship concern, the present applicant is not liable in any way for the transactions that were undertaken by his brother Aman Verma. 9. I have gone through the documents filed by the present applicant. Copies of the cheques, which are subject matter of these complaint, clearly show that the cheques were signed by Aman Verma for and on behalf of Aman Jeweler as proprietor of the concern. In the legal notice also, he was described as proprietor of the concern. Subsequent to this, in the complaint filed under Section 200 of Cr.P.C., name of the present applicant was added. In the legal notice also, he was described as proprietor of the concern. Subsequent to this, in the complaint filed under Section 200 of Cr.P.C., name of the present applicant was added. If it was the case of the complainant that Aman Jeweler is the proprietorship firm, then it was his duty to obtain certificate of the firm issued by the Registrar, Firms and Societies during registration of the firm and also copy of the partnership deed, but it has not been done by the respondent and as such, there is no prima facie evidence available to infer that Aman Jeweler is a partnership firm and the present applicant is a partner. 10. In this view of the matter, it is apparent that the present applicant has no liability for dishonour of the cheques, which were subject matter of the complaint and accordingly, the applicants deserves to be allowed. 11. Accordingly, these applications are allowed. It is directed that the name of the present applicant be deleted from the Complaint Case Nos. 29218/2010 and 17960/2010 pending before the learned JMFC, Indore filed by the respondent. He is discharged from the charge under Section 138 of Negotiable Instruments Act. With the aforesaid observations and directions, present applications stand disposed of.