1. This application under Section 482 of the Code of Criminal Procedure 1973 is filed by the applicants/original accused Nos. 2, 3 and 4 challenging the order dated 13.12.2005 of issuance of process below complaint Exh.1 in Criminal Case No. 8880 of 2005 after a period of six years on the ground that cheque in question was issued by a drawer was one of the partner of the firm and other partners were not drawer of the cheque and the said cheque was drawn by the drawer unauthorizedly and it came to be deposited on 5.3.2005 and according to the complainant it was dishonored on 16.5.2005. It is also not in dispute that the notice dated 26.5.2006 issued by the complainant was addressed to one Mrs. Parulben Samirbhai Majmudar and in the notice no averments made with regard to other partners. Besides, the notice was not addressed to the partnership firm and other partners and, therefore a remedy was undertaken to file discharge application before the competent Court which came to be rejected and, therefore, on 16.5.2011 against the said order this remedy under Section 482 of the Code is undertaken.
2. According to learned advocate for the applicant as per law laid by the Apex in the case of Monaben Ketanbhai Shah and Anr. v. State of Gujarat and Ors. [AIR 2004 SC 4274] averments in a complaint against partners of firm it is necessary to make specific averments about person or a partner in-charge of a responsible to firm or conduct of its business and in absence of such requisite averments in complaint the offence against accused partners deserves to be ignored and an application for discharge is filed on the ground raising above contentions the applicant/accused are to be discharged. In addition to above, another decision relied on by learned advocate for the applicant is Raj Kumar Mangla v. M/s. Indo-Lowenbrau Breweries Ltd. [1998 CR. L.J. 332] pertaining to Section 138 of Negotiable Instruments Act and offence by companies and failure to make assertions that applicant/accused was responsible to the Company or In-charge of the Company and there is no act or negligence attributed to such persons summoning the accused was ordered to be quashed and set aside.
3. The above contention raised by the learned advocate for the applicant is opposed by learned advocate for the complainant by filing affidavit and it is submitted that if the notice addressed to one of the partner is perused, it reveals that partnership firm namely Krishna Distributors had four partners and Mrs. Parulben Samirbhai Majmudar was one of the partners. It is also further averred that distribution of managements of the partnership firm was with one Bupendrabhai Ramanlal Majmudar and current account No. 11103 in the Dena Bank was in the name of Mrs. Parulben Samirbhai Majmudar and one Bupendrabhai Ramanlal Majmudar and other relatives. Even in new current account was opened in Bank of India, Station Road, Bharuch, in the name of Krishna Distributors and it was to be operated by Mrs. Parulben Samirbhai Majmudar and Ankur Ajaybhai Choksi another partners of the partnership firm. That in the business, the account was operated by the partners and cheque was drawn by the partners and, therefore, the complainant had entered into transaction with the applicant. According to learned advocate for the complainant the nature of arguments canvassed by learned advocate for the applicant/accused is not only in realm of defence but attempts have been made to delay the proceedings undertaken by the complainant since 2005 and even after six years the case pending in the Court conducting Negotiable Instruments Act has not reached to its logical end. Even filing of discharge application has failed. It is therefore, submitted that the powers under Section 482 of the Code is not to be exercised since cogent and enough material is available on record in the form of evidence of receipt, delivery challan and books of account.
4. Considering the above submissions of learned advocate for the parties, on perusal of the complaint filed before the competent Court and the necessary averments made by the complainant in the notice initially issued on 26.5.2005 and the complaint, prima facie, reveals that the firm was carrying out the business in the name of Krishna Distributors having current account No.11143 in the Dena Bank and the cheque was dishonored with remark being account closed on 16.5.2005, a notice was issued. Not only that but notice also referred to the basic requirements about nature of transaction, return of the cheque and further the amount of outstanding dues arising out of dishonored cheque and, therefore, at this stage the contention of learned advocate for the applicants about lack of basic ingredients as required under Section 138 cannot be gone into since the Court concerned is seized with the case and order rejecting the application for discharge passed by the competent court on perusal of the necessary material on record do not require any interference as prayed for in exercise of powers under Section 482of the Code.
5. The decisions relied on by learned advocate for the applicant in the case of Monaben Ketanbhai Shah and Anr. (supra) and Raj Kumar Mangla (surpa) have no applicability in the facts of this case, and therefore, this application is rejected.
6. Notice discharge. Ad-interim relief granted earlier stands vacated.
[ANANT S. DAVE, J.] //smita// Top