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2015 DIGILAW 1172 (RAJ)

Santosh Maheshwari v. State of Rajasthan

2015-06-05

PRASHANT KUMAR AGARWAL

body2015
ORDER : 1. By way of this Criminal Misc. Petition under Section 482 Cr.P.C. the accused-petitioner has challenged the order dated 3.8.2009 passed by the Additional Sessions Judge (Fast Track) No.3, Jaipur City, Jaipur in Criminal Revision Petition No.88/2009 whereby the learned revisional Court while dismissing the revision petition filed by the petitioner affirmed and upheld the order dated 2.2.2006 passed by the Judicial Magistrate No.11, Jaipur City, Jaipur in Complaint Criminal Case No.807/2001 whereby the learned trial Court allowed the application dated 23.3.2005 under Section 319 Cr.P.C. filed by the respondent-complainant and summoned one Shri Sanjay Maheshwari as an accused for the offence under Section 138 of the Negotiable Instruments Act (hereinafter to be referred as "the Act") and also order dated 3.11.2001 passed by the trial Court whereby cognizance for offence under Section 138 of the Act was taken against the petitioner and also to quash and set aside the criminal proceedings pending against her in the trial Court. 2. Brief relevant facts for the disposal of this petition may be stated as below:- (1) The respondent-complainant, a company registered under the provisions of the Companies Act, 1956, filed a complaint before the trial Court on 16.06.2001 for offence under Section 138 of the Act against the petitioner and M/s Maheshwari Marbel and Granite with the averment that the above-said firm is a proprietorship firm of which petitioner is proprietor and she, in the capacity of partner of the firm, purchased cement from the Jaipur office of the respondent and to ensure the payment of the sale-price of the cement so purchased, the cheque in dispute dated 6.4.2001 bearing signature of the petitioner was given. It was further averred in the complaint that the cheque was signed by the petitioner and she assured that on being presented for payment, the same shall be honoured. It was also averred that the cheque in dispute was dishonoured by the drawer bank by the reason that sufficient fund was not available in the account maintained by the firm. (2) On the basis of averment made in the complaint, statement recorded under Section 200 Cr.P.C. and the supporting documents, learned trial Court by order dated 3.11.2001 took cognizance for offence under Section 138 of the Act against the petitioner as well as against the firm. (2) On the basis of averment made in the complaint, statement recorded under Section 200 Cr.P.C. and the supporting documents, learned trial Court by order dated 3.11.2001 took cognizance for offence under Section 138 of the Act against the petitioner as well as against the firm. (3) The petitioner put her appearance before the trial Court and moved an application under Section 204 Cr.P.C. on 21.3.2001 with the averment that cognizance against her has wrongly been taken as she did not sign the disputed cheque. It was prayed by the petitioner that the order of cognizance dated 3.11.2001 is liable to be quashed and she may be discharged from the criminal liabilities. The application filed by the petitioner was dismissed by the trial Court vide order dated 12.4.2004. (4) The power of attorney of the respondent filed his affidavit as evidence on 27.9.2004 in which it was stated that the aforesaid firm is a partnership firm of which the petitioner and one Shri Sanjay Maheshwari are partners and the cheque in dispute infact was signed by Shri Sanjay Maheshwari and not by the petitioner. A certificate/letter issued by the drawer bank was also filed to the effect that the cheque in dispute bears the signature of Shri Sanjay Maheshwari. (5) The order dated 3.11.2001 whereby cognizance was taken by the trial Court against the petitioner and the order dated 12.4.2004, whereby the application under Section 204 Cr.P.C. filed by the petitioner for her discharge was dismissed by the trial Court, were challenged by the petitioner by way of S.B. Criminal Misc. Petition No.299/2005, but the same was dismissed by the High Court as withdrawn vide order dated 31.3.2005. (6) In the meanwhile, an application dated 23.3.2005 came to be filed by the respondent under Section 319 Cr.P.C. with a prayer to take cognizance against Shri Sanjay Maheshwari on the ground that he is also one of the partners of the aforesaid firm and he infact signed on the cheque in dispute as partner. Reply to the application was filed on behalf of the petitioner on 23.1.2006 and the learned trial Court vide order dated 2.2.2006 allowed the application and it was directed that Shri Sanjay Maheshwari may also be summoned as an accused to face trial for offence under Section 138 of the Act. Reply to the application was filed on behalf of the petitioner on 23.1.2006 and the learned trial Court vide order dated 2.2.2006 allowed the application and it was directed that Shri Sanjay Maheshwari may also be summoned as an accused to face trial for offence under Section 138 of the Act. It was also observed by the learned Court that as cognizance for the offence has already taken, cognizance is not required to be taken again. The order dated 2.2.2006 was challenged by the petitioner in revision, but the same, as already stated, was dismissed by the revisional Court vide order dated 3.8.2009. In these circumstances, the accused petitioner is before this Court by way of this petition. It is to be noted that Shri Sanjay Maheshwari has not challenged the order dated 2.2.2006. 3. In support of the petition, learned counsel for the petitioner raised the following grounds:- (1) It is now admitted fact of the respondent-company itself that the cheque in dispute bears the signature of Shri Sanjay Maheshwari and not that of the petitioner and it was given by Shri Sanjay Maheshwari to the company against the sale price of the cement allegedly purchased by the aforesaid firm and, therefore, no criminal liability can be fastened upon the petitioner and it would be abuse of process of the Court if the aforesaid criminal proceedings are kept pending against her as it is well settled legal position that a person not signatory to the cheque in dispute cannot be prosecuted for offence under Section 138 of the Act. (2) No evidence, even prima facie, is available on record showing that above firm is a partnership firm and petitioner is one of its partners. Even if for the sake of arguments, it is admitted that the petitioner is also one of the partners of the firm even then she cannot be prosecuted in absence of averment in the complaint that she was, at the time the offence was committed, in charge and was responsible to the firm for the conduct of its business and the cheque in dispute was issued with her knowledge. (3) The respondent is liable to be non-suited and the complaint is required to be dismissed immediately as self contradictory statements have been made by it with regard to material facts. (3) The respondent is liable to be non-suited and the complaint is required to be dismissed immediately as self contradictory statements have been made by it with regard to material facts. In the complaint and the statement recorded on oath under Section 200 Cr.P.C., it was clearly stated that cheque in dispute was given by the petitioner to the company at its Jaipur office and it was signed by her as proprietor of the proprietorship firm M/s Maheshwari Marbel and Granite, whereas in the affidavit filed by the power of attorney of the respondent-company, it has been alleged that it is a partnership firm and Shri Sanjay Maheshwari, as partner, has signed on the cheque in dispute and it was given by him against the sale price of the cement purchased by him from the company. In view of the contradictory stand of the complainant in respect of such material facts, it is but abuse of process of the Court if the criminal proceedings are allowed to proceed further. (4) Petitioner cannot be estopped to challenge the initial order of cognizance dated 3.11.2001 and the proceedings pending against her by way of the present petition under Section 482 Cr.P.C. merely because her earlier petition was dismissed as withdrawn. As the previous petition was not decided on merit and this Court has wide powers under Section 482 Cr.P.C. to prevent abuse of process of the Court or to secure the ends of justice, it is a fit case in which the inherent powers conferred upon the Court are to be exercised and the criminal proceedings pending before the trial Court are quashed in entirety. (5) The order dated 2.2.2006 as affirmed by the revisional Court is also bad in law as no offence under Section 138 of the Act can be said to have been committed in absence of prior notice of demand as provided under proviso (b) to Section 138 of the Act. One of the pre-condition for filing a complaint for such an offence is that the payee or the holder of the cheque, as the case may be, makes a demand for the payment of the amount of the cheque by giving a notice in writing to the drawer of the cheque. It is not the case of respondent that such notice was given to Shri Sanjay Maheshwari. 4. It is not the case of respondent that such notice was given to Shri Sanjay Maheshwari. 4. In support of his submissions, learned counsel for the petitioner relied upon the case of Mrs. Aparna A.Shah Vs. M/s Sheth Developers Pvt. Ltd. & Anr. reported in 2013 (2) WLC (SC) Cri. 289. 5. On the other hand, learned counsel for the respondent-complainant submitted as below:- (1) The petitioner is not entitled to challenge the order dated 2.2.2006 as affirmed by the revisional Court vide order dated 3.8.2009 as she cannot be said to be aggrieved by the same as cognizance has been taken against one Shri Sanjay Maheshwari and he has been summoned as an additional accused under Section 319 Cr.P.C. The petition to that extent is liabile to be dismissed as not maintainable. The revision petition filed by the petitioner has been dismissed by the revisional Court on the ground that the petitioner had no locus standi to challenge the order dated 2.2.2006. (2) Cognizance order dated 3.11.2001 as well as order dated 12.4.2004 whereby application filed by the petitioner under Section 204 Cr.P.C. to discharge her was dismissed by the trial Court, were challenged by the petitioner by way of S.B. Criminal Misc. Petition No.299/2005 on every possible ground, but the same was dismissed by the High Court as withdrawn vide order dated 31.3.2005 and, therefore, the petitioner is now estopped to challenge the same again on similar grounds even if her earlier petition was not decided on merit. Once the cognizance order has attained finality, it cannot be challenged midway. Respondent must get opportunity to prove its present stand that the above firm is a partnership firm and the petitioner and Shri Sanjay Maheshwari are its partners and the petitioner, at the time the offence under Section 138 of the Act was committed, was in charge of and was responsible to the firm for the conduct of its business and the cheque in dispute was given by Shri Sanjay Maheshwari to the respondent-company with her knowledge and she took no steps to prevent the dishonour of the cheque. The respondent must also get opportunity to show that by mistake it was stated in the complaint and the statement recorded under Section 200 Cr.P.C. that the aforesaid firm is a proprietorship firm and the petitioner is its proprietor and the cheque in dispute was signed by her. The respondent must also get opportunity to show that by mistake it was stated in the complaint and the statement recorded under Section 200 Cr.P.C. that the aforesaid firm is a proprietorship firm and the petitioner is its proprietor and the cheque in dispute was signed by her. It is to be noted that as soon as correct facts came into the knowledge of the respondent, they were brought before the trial Court in the form of an affidavit of the power of attorney of the respondent-company alongwith certificate/letter issued by the drawer bank. The complainant is a company who acts through its officers having knowledge of relevant facts from time to time. The present criminal proceedings cannot be quashed midway without affording opportunity to the respondent to explain the circumstances in which contradictory stand was taken by it about the facts which are said to be material by the petitioner. The petitioner cannot escape from the criminal liability merely because she is not signatory to the cheque in dispute or it was not drawn by her as she is one of the partners of the firm. (3) Order dated 2.2.2006 cannot be said to be bad in law merely in absence of notice as envisaged under proviso (b) to Section 138 of the Act as cognizance against Shri Sanjay Maheshwari has been taken by the trial Court under its discretionary jurisdiction under Section 319 Cr.P.C. Otherwise also, when drawer of cheque in dispute is a firm, notice of demand is required to be given to the firm only and not to each and every partner of the firm also and, therefore, the aforesaid order cannot be challenged on the ground of absence of notice. It is the stand of the respondent that notice of demand was given to the firm as well as to the petitioner who is one of the partners of the firm. 6. I have considered the submissions made on behalf of the parties and perused the material made available on record as well as the relevant legal provisions and the case law. 7. 6. I have considered the submissions made on behalf of the parties and perused the material made available on record as well as the relevant legal provisions and the case law. 7. In my view the petition being meritless is liable to be dismissed for the following reasons:- (1) The petitioner cannot be allowed to assail the order of cognizance dated 3.11.2001 and the criminal proceedings pending against her once again as her earlier petition was dismissed as withdrawn by the High Court vide order dated 31.3.2005. Copy of the previous petition, which is available on record, shows that the same was filed on the grounds which are almost similar to the grounds which have been taken in the present petition. The earlier petition was filed after her application under Section 204 Cr.P.C. was dismissed by the trial Court refusing her discharge midway and after affidavit as evidence alongwith the certificate/letter issued by the drawer bank was filed on behalf of the respondent-company. Although, the former petition was not decided on merit, but it appears that the petitioner took a conscious decision to withdraw it perhaps when it was realised by her that chances of the petition to be allowed are very bleak. (2) The respondent must get opportunity during trial to show that the petitioner cannot escape from criminal liability only because she is not a signatory to the cheque in dispute and she is also equally liable being one of the partners of the firm. The respondent must also get opportunity to satisfy the trial Court that infact the aforesaid firm is a partnership firm and the petitioner and Shri Sanjay Maheshwari are its partners and by mistake wrong facts were stated in the complaint as well as in statement under Section 200 Cr.P.C. and as soon as correct facts came into its knowledge, the same were brought before the Court without any undue delay in the form of affidavit as well as letter/certificate of the bank concerned. It is after both the parties led their evidence during trial, it can properly be decided that whether the wrong facts were deliberately made by the respondent or it was by mistake on the part of its officers. It is after both the parties led their evidence during trial, it can properly be decided that whether the wrong facts were deliberately made by the respondent or it was by mistake on the part of its officers. Similarly, it is after trial only it can be decided whether petitioner is also one of the partners of the firm and she is also criminally liable being partner of the firm even if she is not signatory to the cheque in dispute. The petitioner can be held liable for the dishonour of the cheque in dispute if it is found by the trial Court that she being partner of the firm, at the time the offence was committed, was in charge of and was responsible to the firm for the conduct of its business and cheque in dispute was given with her knowledge and she did not take necessary steps to prevent its dishonour. (3) Order dated 2.2.2006, as affirmed by the revisional Court, cannot be held to be bad in law merely because demand notice was not served upon Shri Sanjay Maheshwari. The notice under Section 138 of the Act is required to be given to "the drawer" of the cheque so as to give the drawer an opportunity to make the payment and escape the penal consequences. There is nothing in this provision suggesting issuance of notice to anyone other than the drawer. Section 141 of the Act also does not show that when the drawer of the cheque is a partnership firm, demand notice is required to be served upon each and every partner also or of any of the partners. It is sufficient if the notice is served upon the firm. In the present case stand of the respondent-company is that demand notice was given to the firm as well as to the petitioner. (4) The petitioner cannot be said to be aggrieved by the order dated 2.2.2006 and she is not entitled to assail the same. The revisional Court has rightly held that she has no locus standi to challenge the aforesaid order. 8. Consequently, the criminal misc. petition is, hereby, dismissed. The stay application also stands dismissed.