1. Present petition under section 482 of the Code of Criminal Procedure has been preferred by the petitioner - original accused No.1 to quash and set aside the impugned complaint being Criminal Case No.1959 of 2008 (Old Criminal Case No.153 of 2004), filed by the respondent No.2 – original complainant for the offence punishable under section 138 of Negotiable Instruments Act, at the relevant time pending in the court of learned Metropolitan Magistrate, Court No.15, Ahmedabad.
2. That the respondent No.2 herein – original complainant has instituted the impugned complaint against the petitioner - original accused No.1 and another for the offence punishable under section 138 of the Negotiable Instruments Act for dishonour of the Cheque No.025999 of Rs.40,000/- and Cheque No.026000 of Rs.40,000/- both dtd.21/11/2003 issued by one Antique Pharma, a Partnership Firm, through its partner – Original accused No.2 named Nimay Amrutlal Pujara. In the said complaint the learned Magistrate passed an order directing to issue Summons against the accused inclusive of the petitioner - original accused No.1, for the offence punishable under section 138 of Negotiable Instruments Act. Hence, the petitioner - original accused has preferred the present petition under section 482 of the Code of Criminal Procedure.
4. Mr.Rajesh Chauhan, learned advocate appearing on behalf of the petitioner – original accused has vehemently submitted that as such the petitioner has not committed the offence under section 138 of the Negotiable Instruments Act, as alleged. It is submitted that as such the cheques in question have been issued and signed by the original accused No.2 as a partner of the Antique Pharma, a Partnership Firm. It is submitted that though in the cause title the petitioner is described as Partner of Antique Pharma, however, there are no averments and allegations in the compliant that the petitioner was Partner of Antique Pharma, a Partnership Firm and/or she was in day-to-day management and affairs of the aforesaid Partnership Firm, who has issued the cheques. Therefore, relying upon the decisions of the Hon'ble Supreme Court in the case of SmS Pharmaceuticals Ltd. Vs. Neeta Bhalla and another, reported in (2005) 8 SCC 89, in the case of National Small Industries Corporation Ltd Versus Harmeet Singh Paintal and another, reported in (2010) 3SCC 330 as well as in the case of Central Bank of India Versus Asian Global Ltd., reported in (2010) 11 SCC 203, it is requested to quash and set aside the impugned complaint.
5. Though served nobody appears on behalf of the respondent No.2 – original complainant.
6. Mr.K.L. Pandya, learned Additional Public Prosecutor has requested to pass appropriate order in the facts and circumstances of the case.
7. Heard Mr.Rajesh M. Chauhan, learned advocate appearing on behalf of the petitioner – original accused No.1 and considered the averments and allegations in the complaint. It appears from the complaint that the cheques in question have been issued by the original accused No.2 named Niyan Amrutlal Pujara for and on behalf of the Antique Pharma, a Partnership Firm, and in fact the original accused No.2 named Niyan Amrutlal Pujara has signed the cheques in question and not the petitioner herein – original accused No.1. It is also required to be noted that though in the cause title of the complaint, the petitioner is shown as Partner of Antique Pharma, a Partnership Firm, there are no further averments and allegations in the complaint that the petitioner was Partner of the aforesaid Partnership Firm, who has issued the cheques and that the petitioner herein – original accused No.1 was in charge of and responsible to the day-to-day management and affairs of the said Partnership Firm. Under the circumstances, considering the decisions of the Hon'ble Supreme Court in the cases of SmS Pharmaceuticals Ltd. (supra); National Small Industries Corporation Ltd. (supra) and Central Bank of India (supra), the petitioner - original accused No.1 cannot be held vicariously liable under section 141 of the Negotiable Instruments Act for dishonour of the cheques in question, which have been admittedly issued by the original accused No.2. Under the circumstances, to continue the criminal proceedings against the petitioner - original accused No.1 would be unnecessary harassment to the petitioner and the same would be abuse of process of law and court. Under the circumstances, this court is of the opinion that this is a fit case to quash and set aside the impugned criminal proceedings qua petitioner herein – original accused No.1.
8. In view of the above and for the reasons stated above, present petition succeeds. The impugned complaint being Criminal Case No.1959 of 2008 (Old Criminal Case No.153 of 2004), at the relevant time pending in the court of learned Metropolitan Magistrate, Court No.15, Ahmedabad is hereby quashed and set aside QUA petitioner - original accused No.1 only. However, the same shall be without prejudice to the rights of the complainant / prosecution against the original accused No.2 / Partnership Firm who has issued the cheques in question and they shall be tried by the concerned court in accordance with law and on merits, without in any way being influenced by the present judgement and order. Rule is made absolute accordingly.
[M.R. SHAH, J.] rafik