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Himachal Pradesh High Court · body

2017 DIGILAW 312 (HP)

Vipin Kumar v. Parensnath Tiwari

2017-04-06

TARLOK SINGH CHAUHAN

body2017
JUDGMENT Tarlok Singh Chauhan, J. —By way of this petition, under section 482 of the Code of Criminal Procedure, petitioners have sought quashing of the Complaint No. 50/3 of 2015 filed under section 138 of the Negotiable Instrument Act (for short ''Act'') as well as summoning order dated 7.7.2015 passed by the learned Chief Judicial Magistrate, Nahan, District Sirmour. 2. The petitioners are some of the accused in a complaint filed by respondent No.1 under section 138 of the Act. The only ground raised seeking for quashing of the proceedings is that the complaint is not as per the mandate of section 141 of the Act, which makes it obligatory on the part of the complainant to make specific averments regarding the complicity of the accused and the mere fact that the petitioners are some of the partners of respondent No.3 firm would not make them per se liable or responsible for the alleged offence. 3. The complaint has been filed as far as back in the year 2015 and vide order dated 7.7.2015, after recording preliminary evidence and satisfying itself that there was sufficient grounds to proceed against the accused for the commission of offence punishable under section 138 of the Act, the learned Trial Magistrate issued notices against the petitioners and other accused-respondents No. 2 and 3 herein. The proceedings thereafter continued and it was only on 25.2.2016 that the application under section 258 Cr.P.C. for stopping the proceedings came to be filed by the petitioners as well as respondent No.2 herein, who alone are the partners of respondent No.3. 4. How such an application was maintainable would be anybody''s guess? Anyhow, the proceedings in the application continued and ultimately vide order dated 31.8.2016, the same was ordered to be dismissed on the ground that this provision, i.e. section 258 of the Code of Criminal Procedure was only applicable to cases instituted on the police report and was not applicable to a complaint case, which had been initiated under the provisions of the ''Act''. 5. Notably, not only have the petitioners participated in the proceedings before the Trial Magistrate without any demeanuor but even the order dated 31.8.2016 whereby the application under section 258 of the Code of Criminal Procedure came to be dismissed has not been assailed. 6. Now, as regards section 258 of the Code of Criminal Procedure, the same reads thus: "258. Notably, not only have the petitioners participated in the proceedings before the Trial Magistrate without any demeanuor but even the order dated 31.8.2016 whereby the application under section 258 of the Code of Criminal Procedure came to be dismissed has not been assailed. 6. Now, as regards section 258 of the Code of Criminal Procedure, the same reads thus: "258. Power to stop proceedings in certain cases. In any, summons that case instituted otherwise than upon complaint, a Magistrate of the first class or, with the previous sanction of the Chief Judicial Magistrate, any other Judicial Magistrate, may, for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, pronounce a judgment of acquittal, and in any other case release, the accused, and such release shall have the effect of discharge." 7. The aforesaid provision makes it absolutely clear that the same is attracted only in cases other than the complaint, meaning thereby if the prosecution is filed by the State then this section shall be attracted. Whereas in the instant case, the complaint has been filed by a private party, therefore, the aforesaid section is clearly not applicable. Reference in this regard can conveniently be made to the judgment rendered by the Hon''ble Supreme Court in John Thomas v. Dr. K. Jagadeesan, (2001) 6 SCC 30 , wherein it was observed as under: "[8] Summons cases are generally of two categories. Those instituted upon complaints and those instituted otherwise than upon complaints. The latter category would include cases based on police reports. Section 258 of the Code is intended to cover those cases belonging to one category alone i.e. "summons cases instituted otherwise than upon complaints." The segment separated at the last part of the section by the words "and in any other case" is only a sub-category or division consisting of "''summons cases instituted otherwise than upon complaints. " That sub-category is not intended to cover all summons cases other than those instituted on police report. In fact, Section 258 vivisects only "summons cases instituted otherwise than on complaints" into two divisions. One division consists of cases in which no evidence of material witness was recorded. " That sub-category is not intended to cover all summons cases other than those instituted on police report. In fact, Section 258 vivisects only "summons cases instituted otherwise than on complaints" into two divisions. One division consists of cases in which no evidence of material witness was recorded. The section permits the Court to acquit the accused prematurely only in those summons cases instituted otherwise than on complaints wherein the evidence of material witnesses was recorded. But the power of Court to discharge an accused at midway stage is restricted to those cases instituted otherwise than on complaints wherein no material witness was examined at all. [9] The upshot of the above is that Section 258 of the Code has no application to cases instituted upon complaints. The present is a case which was instituted on complaint. Hence the endeavour made by the accused to find help from Section 258 of the Code is of no avail." 8. Once the order dated 31.8.2016 has not been assailed, the instant petition under section 482 of the Code of Criminal Procedure would normally not be maintainable unless it is shown that either the proceedings before the learned Magistrate are coram non judice or are otherwise not maintainable. 9. Mr. Ajay Tyagi, learned counsel for the petitioner, would vehemently argue that in the absence of any averment in the application that the petitioners were in fact incharge of or were responsible to the firm for the conduct of its business, as mandatorily required to be pleaded under section 141 of the Act, the complaint filed by the respondent No.1 is not maintainable and thus deserves to be quashed. 10. Heavy reliance is placed upon the judgment rendered by this Court in Cr.MMO No. 29 of 2014, titled as Ashok Kumar Tyagi v. State of H.P. decided on 22.4.2015 wherein this Court, after taking into consideration the various pronouncements of the Hon''ble Supreme Court, observed as under: "23. 10. Heavy reliance is placed upon the judgment rendered by this Court in Cr.MMO No. 29 of 2014, titled as Ashok Kumar Tyagi v. State of H.P. decided on 22.4.2015 wherein this Court, after taking into consideration the various pronouncements of the Hon''ble Supreme Court, observed as under: "23. Now, reverting to the facts of the case, it would be seen that no doubt in paragraph No. 9 of the complaint it has been averred that the petitioner along with other partners was incharge and responsible to the firm for the conduct of the business and the complainant has also placed on record a copy of an endorsement made by the petitioner himself acknowledging the fact that he along with the other petitioners is equally responsible for day to day business, but does this meet the requirement of Section 34 of the Act? 24. The law does not presume that every partner is incharge of and responsible to the firm. A perusal of Section 34 as a whole would show that there is a presumption of being guilty against a person, who is incharge of and responsible to the firm, and such a person is liable to be punished unless he proves that offence was committed without his knowledge or in spite of exercise of due diligence to prevent the commission of offence. By virtue of Sub-section (2), by a non obstante clause in its opening part, the prosecution is obliged to prove that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, Manager, Secretary or other officer of the company and in this case, partner or any other officer of the partnership firm/partnership before drawing a presumption of being guilty against such individual. 27. The role of a partner in a firm is a question of fact depending upon the peculiar facts in each case and there is no universal rule that a partner of a firm is incharge of its every day affairs. 27. The role of a partner in a firm is a question of fact depending upon the peculiar facts in each case and there is no universal rule that a partner of a firm is incharge of its every day affairs. It also follows that the mere fact that some allegations have been made in the complaint by itself would not mean that this Court must dismiss the petition, because it has to be remembered that the core of a criminal case are its facts and in factual matters there are no fixed formulae required to be followed by the Court unless it is dealing with an entirely procedural matter. 28. It is more than settled that in case of a partner, the complaint should specifically spell out how and in what manner the partner was incharge of or was responsible to the firm for the conduct of its business and mere bald and cursory statement that he was the incharge of and was responsible to the firm for the conduct of its business is not sufficient." 11. It would be noticed that even in the aforesaid judgment; this Court has clearly held that the role of a partner in a firm is a question of fact depending upon the peculiar facts in each case. 12. Now, adverting to the complaint, it would be noticed that apart from other allegations specific allegations have been set up against the petitioners, i.e. accused No.2 and 3 in para 3 thereof and same read thus: "3. That the accused persons without associating the complainant have settled the account of the accused No.1 and found that a sum of Rs. 28,00,000/- (Rs. Twenty Eight Lac only) is lying as the amount of the complainant in the accused No.1 and on his retirement as mentioned above it is due towards the complainant payable by all the accused persons. Since the accused No.2 to 3 remained the partners in the firm therefore in order to clear the dues of the complainant and discharge of their legally enforceable liability towards the complainant issued cheque No. 000075 dated 24.12.2014 amounting to Rs. 28,00,000/- only to the complainant by the accused persons from account No. 50200001311751 maintained by the accused persons in the name and style of accused No.1 in HDFC Bank Kala Amb singed by accused No.3 being its authorised signatory." 13. 28,00,000/- only to the complainant by the accused persons from account No. 50200001311751 maintained by the accused persons in the name and style of accused No.1 in HDFC Bank Kala Amb singed by accused No.3 being its authorised signatory." 13. Thus, in view of the aforesaid averments, the burden of proof that the petitioners, at the relevant time, though partners, were neither incharge of nor were responsible to the firm for the conduct of its business, is upon them and the same is required to be discharged by them by leading evidence and unless it is proved in accordance with law, they cannot be discharged of their liability at this stage. 14. One really wonders whether the petitioners at this stage can seek quashing of the complaint on the ground that though they are partners of the firm but are not incharge and responsible for the conduct of its business, particularly when all the partners, i.e. petitioners No.1 and 2 and respondent No.2 had earlier jointly filed an application under section 258 of the Code of Criminal Procedure, wherein on similar allegations all three of them had sought their discharge. 15. Once it is not denied, rather admitted, that respondent No.3 is a partnership firm of which petitioners No.1 and 2 and respondent No.2 alone are the partners, then how and on what basis can each one of them claim discharge under the law or seek quashing of the complaint is not at all forth coming. 16. After all, even if it is assumed that there are no specific allegations as averred by the petitioners though not conceded, even then it is one of these partners, who would be incharge of or responsible to the firm for the conduct of its business individually or jointly till the contrary is proved. 17. Even otherwise, this Court cannot be oblivious to the fact that the cheque in question is for a huge amount of Rs. 28,00,000/- (twenty eight lakhs) and once the complaint sufficiently meets the requirements of section 141 of the Act, the same cannot be quashed. 18. Having said so, I find no merit in the petition and the same is dismissed, leaving the parties to bear their own costs. 19. 28,00,000/- (twenty eight lakhs) and once the complaint sufficiently meets the requirements of section 141 of the Act, the same cannot be quashed. 18. Having said so, I find no merit in the petition and the same is dismissed, leaving the parties to bear their own costs. 19. However, before parting, it needs to be observed that the complaint appears to be pending before the Trial Magistrate for the last two years, therefore, it is expected that the same would be disposed of as expeditiously as possible and in no event later than 15th May, 2017.