[1.0] Present Criminal Miscellaneous Application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “CrPC”) has been preferred by the applicants herein – original accused Nos.3 to 5 to quash and set aside the impugned complaint being Criminal Case No.4219/1998 pending in the Court of learned Judicial Magistrate, First Class, Rajkot. It is also further prayed to quash and set aside the process issued therein against the applicants. It is also further prayed to quash and set aside the impugned order dated 30.03.2009 passed by the learned Additional District Judge and Presiding Officer, 5th Fast Track Court, Rajkot rejecting the Criminal Revision Application No.7/2008 confirming the order dated 12.12.2007 passed below Exh.61 in Criminal Case No.4219/1998. [2.0] Facts leading to filing of the present application in nut shell are as under:
[2.1] Respondent No.1 herein – original complainant has filed the criminal complaint being Criminal Case No.4219/1998 against the applicants – accused and others in the Court of learned Chief Judicial Magistrate, Rajkot for the offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as “NI Act”) for dishonour of cheque issued by original accused No.1 partnership firm M/s. Mona Chemicals. That in the said complaint, the learned Magistrate has directed to issue summons/process against the applicants and other accused persons for the offence under Section 138 of the NI Act. That being aggrieved and dissatisfied with the above, applicants preferred Criminal Miscellaneous Application No.2438/2000 before this Court contending interalia that as such applicants were sleeping partners of original accused No.1 partnership firm and that they were not in day to day affairs and management of the original accused No.1 partnership firm and therefore, they cannot be held vicariously liable under Section 141 of the NI Act for the offence alleged to have been committed by the original accused No.1 partnership firm. That the said Criminal Miscellaneous Application came to be dismissed by the learned Single Judge by judgment and order dated 26.04.2002 by further observing that whether the applicants were the sleeping partners and/or whether they were in day to day affairs and management of the original accused No.1 partnership firm or not, are all defences and questions which are required to be considered at the time of trial. It appears that thereafter in the case of very applicants, there was a decision of the Hon'ble Supreme Court in the case of Monaben Ketanbhai Shah v. State of Gujarat reported in AIR 2004 SC 4274 laying down the law that even to make the partners of the partnership firm who has issued the cheque, vicariously liable for the offence under Section 141 of the NI Act, there must be specific averments and allegations in the complaint that they were the partners of the partnership firm who has issued the cheque and that they were in day to day affairs and management of the said partnership firm and the criminal proceedings against the very applicants came to be quashed and set aside by the Hon'ble Supreme Court which are initiated for the offence under the NI Act, in absence of any specific averments or allegation in the complaint that they were the partners of the partnership firm who has issued the cheque and that they were in day to day affairs and management of the said partnership firm. Therefore, in view of the aforesaid law declared by the Hon'ble Supreme Court and as there are no specific averments and allegations in the complaint that the applicants were the partners of the original accused No.1 partnership firm who has issued the cheque and that they were in day to day affairs and management of accused No.1 partnership firm and therefore, relying upon the aforesaid decision of the Hon'ble Supreme Court, the applicants submitted application Exh.61 before the learned Magistrate to discharge them and the learned JMFC, Rajkot by order dated 12.12.2007 dismissed the said application by observing that as earlier the Revision Application against the order passed by the learned Magistrate issuing process against the applicants and even the Criminal Miscellaneous Application filed by the accused before the High Court came to be dismissed, the said application cannot be granted. That being aggrieved and dissatisfied with the order passed by the learned JMFC, Rajkot below Exh.61 in Criminal Case No.4219/1998, the applicants preferred Criminal Revision Application No.7/2008 which also came to be dismissed by the Revisional Court in view of the earlier dismissal of Criminal Miscellaneous Application No.2428/2000 by this Court and refusing to quash and set aside the complaint/criminal case. Being aggrieved and dissatisfied with the aforesaid orders and to quash and set aside the impugned criminal proceedings against them, the applicants have preferred the present Criminal Miscellaneous Application under Section 482 of the CrPC.
[3.0] Shri R.D. Dave, learned advocate appearing on behalf of the applicants has vehemently submitted that in view of the subsequent law laid down by the Hon'ble Supreme Court more particularly in the case of the very applicants, in the case of Monaben Ketanbhai (Supra) and number of subsequent decisions of the Hon'ble Supreme Court in the case of S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla & Anr. reported in (2005)8 SCC 89; National Small Industries Corporation Ltd. v. Harmeet Singh Paintal & Anr. reported in (2010)3 SCC 330; Central Bank of India and Anr.
v. Saxons Farms and Ors. reported in (1999) 8 SCC 221, in absence of any specific averments and allegations in the complaint that the applicants were the partners of accused No.1 partnership firm and that they were in day to day affairs and management of the accused No.1 who has issued the cheque, the applicants cannot be held vicariously liable under Section 141 of the NI Act for the offences alleged to have been committed by the accused No.1 partnership firm. It is submitted that in view of the change in law, another application under Section 482 of the CrPC is maintainable and as such there cannot be any bar against entertaining another application in case of change in law. In support of his submission, Shri Dave, learned advocate appearing on behalf of the applicants has relied upon the decision of the Hon'ble Supreme Court in the case of Pruthvirajsinh @ Aniruddhsinh v. R.K. Singhia, Deputy Director of the Directorate of Revenue Intelligence & Anr. reported in 2000 (2) GLR 1390 as well as the decision of the Hon'ble Supreme Court in the case of Superintendent and Remembrancer of Legal Affairs, W.B. v. Mohan Singh reported in AIR 1975 SC 1002 as well as another decision of the Hon'ble Supreme Court in the case of Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav & Anr. reported in 2005(3) GLH 601 (Para 19).
[3.1] It is submitted that in case of the very applicants, this Court has quashed and set aside other complaints/criminal proceedings against the applicants, in absence of any specific averments and allegations in the complaint that the applicants were the partners of the accused No.1 partnership firm and that they were in day to day affairs and management of the partnership firm. Therefore, it is submitted that when on bare reading of the complaint and averments and allegations in the complaint, the applicants are not likely to be convicted at all and the complainant is not likely to secure any conviction, it is requested to exercise powers under Section 482 of the CrPC. It is submitted that at the relevant time the learned Single Judge dismissed the Criminal Miscellaneous Application No.2438/2000 considering the position of law prevailing at the relevant time. It is submitted that however subsequently the Hon'ble Supreme Court has clarified the position of law and has declared the law in the case of Monaben (Supra) and in other decisions and therefore, the dismissal of earlier Criminal Miscellaneous Application No.2438/2000 may not come in the way of the applicants to submit the present application. Making above submissions and relying upon above decisions, it is requested to allow the present application and to quash and set aside the impugned criminal proceedings against the applicants – original accused Nos.3 to 5.
[4.0] Application is opposed by Ms. Mariya Dalal, learned advocate for Shri Yatin Soni, learned advocate appearing on behalf of the original complainant. It is submitted that in view of the dismissal of the earlier Criminal Miscellaneous Application No.2438/2000, which was dismissed on merits by observing that whatever has been submitted by the applicants are all their defences and they are required to be considered at the time of trial, the present application is not maintainable and therefore, it is requested to dismiss the present application. It is submitted that in view of the subsequent change in law, second application under Section 482 of the CrPC would not be maintainable and in view of the observations made by the learned Single Judge made while dismissing the Criminal Miscellaneous Application No.2438/2000, applicants have to face the trial and have to prove by leading evidence that they were sleeping partners in accused No.1 partnership firm and that they were not in day to day affairs and management of the accused No.1 partnership firm. Therefore, it is requested to dismiss the present application.
[5.0] Shri L.B. Dabhi, learned Additional Public Prosecutor has requested to pass appropriate order in the facts and circumstances of the case.
[6.0] Heard the learned advocates appearing for respective parties at length. Present application has been preferred by the applicants herein – original accused Nos.3 to 5 to quash and set aside the impugned complaint being Criminal Case No.4219/1998 filed by respondent No.2 herein – original complainant for the offence under Section 138, mainly against original accused No.1 M/s. Nova Chemicals – a partnership firm for dishonour of the cheque issued by original accused No.1 – partnership firm. In the said complaint, the applicants herein are arraigned as accused Nos.3 to 5, however, considering the averments and allegations in the complaint, nothing has been mentioned under which capacity the complaints are arraigned as accused. It is not mentioned in the complaint that the applicants are arraigned as accused as partners of the original accused No.1 – a partnership firm who has issued the cheque. There are no further averments and allegations in the complaint that the applicants were in day to day affairs and management of the accused No.1 – partnership firm who has issued the cheque. Under the circumstances, considering number of decisions of the Hon'ble Supreme Court in the case of S.M.S. Pharmaceuticals Ltd. (Supra); Harmeet Singh Paintal (Supra); Saxons Farms and Ors. (Supra), in absence of any allegations and averments in the complaint that the applicants were the partners of the partnership firm who has issued the cheque and that they were in day to day affairs and management of the said partnership firm, applicants cannot be held vicariously liable under Section 141 of the NI Act for dishonour of the cheque issued by the partnership firm. It is also required to be noted that in case of very applicants, in the case of Monaben Ketanbhai Shah (Supra), the Hon'ble Supreme Court has held that to make the partners of the partnership firm vicariously liable for the offence under Section 141 of the NI Act, there must be specific averments and allegations in the complaint that they were the partners of the partnership firm who issued the cheque and that they were in day to day affairs and management of the said partnership firm and in absence of such specific averments and allegations in the complaint, the Hon'ble Supreme Court had quashed and set aside the criminal proceedings against the applicants for the offence under Section 138 of the NI Act. It is required to be noted that the learned advocate appearing on behalf of the original complainant is not in a position to dispute the aforesaid proposition of law laid down by the Hon'ble Supreme Court.
[6.1] However, the only contention on behalf of the original complainant is that earlier the very applicants preferred Criminal Miscellaneous Application before this Court for quashing and setting aside the very complaint and the learned Single Judge dismissed the said Criminal Miscellaneous Application and refused to quash and set aside the impugned complaint by observing that the contention on behalf of the applicants are all their defences which are required to be considered at the time of trial and therefore, it is submitted that the second application under Section 482 of the CrPC is not maintainable. However, considering the decision of the Hon'ble Supreme Court in the case of Mohan Singh (Supra) as well as in the case of Pruthvirajsinh @ Aniruddhsinh (Supra), it cannot be said that in all cases, second application under Section 482 of the CrPC is barred and/or not maintainable. As held by the Hon'ble Supreme Court in the case of Mohan Singh (Supra), if it is found that there are changed circumstances after filing of the first application under Section 482 of the CrPC, there is no bar to entertain the second application for quashing under Section 482 of the CrPC. Therefore, while considering the entertainability and/or maintainability of the second application for quashing the proceedings under Section 482 of the CrPC, what is required to be considered is, whether after the dismissal of the first application, there are changed circumstances or not. It is required to be noted that at the time when the first application was decided by this Court, the position of law was not clear and in the subsequent decisions more particularly in the case of the very applicants, the Hon'ble Supreme Court has clarified the law and and considering the subsequent decisions of the Hon'ble Supreme Court, it cannot be disputed that in absence of any allegation and averments in the complaint that the applicants were the partners of the original accused No.1 partnership firm and that they were in day to day affairs and management of the said partnership firm, they cannot be prosecuted for the offence under Section 138 of the NI Act and/or that they cannot be held vicariously liable under Section 141 of the NI Act for the offence under Section 138 of the NI Act alleged to have been committed by the original accused No.1 – partnership firm. Therefore, subsequent decisions of the Hon'ble Supreme Court can be said to be a changed circumstance and therefore, there is no bar to entertain the second application for quashing under Section 482 of the CrPC.
[6.2] Considering the above facts and circumstances and considering the decisions of the Hon'ble Supreme Court in the case of S.M.S. Pharmaceuticals Ltd. (Supra); Harmeet Singh Paintal (Supra); Saxons Farms and Ors. (Supra), in absence of any allegations and averments in the complaint that they were partners of the accused No.1 – partnership firm and that they were in day to day affairs and management of the said partnership firm, to continue the criminal proceedings against the applicants would be abuse of process of law and the Court as in absence of any averments and allegations in the complaint, they cannot be held vicariously liable under Section 141 of the NI Act for the offences under Section 138 of the NI Act alleged to have been committed by the original accused No.1 – partnership firm. At this stage, it is also required to be noted that other complaints filed by the very respondent No.2 herein filed against the very applicants for the offence under Section 138 of the NI Act have been quashed and set aside by this Court in the similar set of facts and circumstances. Under the circumstances and in view of the subsequent decisions of the Hon'ble Supreme Court, there shall not be any bar to entertain the second application, more particularly, when considering the law laid down by the Hon'ble Supreme Court in subsequent decisions, there are least chances of holding the applicants guilty and/or vicariously liable under Section 141 of the NI Act. Under the circumstances, to continue the criminal proceedings against the applicants would be unnecessary harassment to the applicants and abuse of process of law and the Court. Under the circumstances, considering the purpose and object of exercising powers under Section 482 of the CrPC, it appears to the Court that this is a fit case to exercise powers under Section 482 of the CrPC and to quash and set aside the impugned criminal proceedings against the applicants.
[7.0] In view of the above and for the reasons stated above, the present Criminal Miscellaneous Application succeeds and the impugned complaint being Criminal Case No.4219/1998 pending in the Court of learned Judicial Magistrate, First Class, Rajkot is hereby quashed and set aside so far as the applicants herein – original accused Nos.3 to 5 are concerned. However, the same shall be without prejudice to the rights and contentions of the original complainant and prosecution against the other accused persons and that they shall be tried by the concerned Magistrate in accordance with law and on merits without in anyway being influenced by the present order, which would be qua only the applicants herein – original accused Nos.3 to 5 only. Rule is made absolute accordingly.
(M.R. Shah, J.) menon