1. By filing the present Revision Application, the petitioner – original complainant has challenged the order dated 21.11.2003 passed below Exh.2 in Criminal Case No. 1011 of 2002, by the learned Metropolitan Magistrate, Court No.11, Ahmedabad, granting discharge application filed by the respondents Nos.2, 3 & 4 – original accused Nos.3,4 & 5 and acquitted them for the charges alleged against them.
2. The case of the petitioner – complainant is that the petitioner is the limited company and for the purpose of its business, the complainant – company used to advance monies to the accused No.1 – firm. The accused Nos.2, 3, 4, 5 & 6 are the partners of accused No.1 – firm. It is the case of the complainant that the accused have assured the complainant that the monies advanced by the complainant, from time to time, would be adjusted by purchasing D.E.P.B. Licences of various values and if the licences are not given to the complainant by the accused then the accused would return the money to the complainant by way of cheque/s. It is the case of the complainant that the Accounts Department of the accused No.1 – firm by letter dated 9.5.2002 confirmed that the balance of the complainant company is due and payable by accused No.1 is Rs.1,89,83,656/- and there were some discrepancy in their books of accounts. It is alleged that on account of the dues of the complainant, the accused No.1 – Firm issued in all 9 cheques of different dates i.e. between 1st October, 2001 to 7th December, 2001, totalling to Rs.1,90,000/-. The said cheques when presented by the complainant, the same were returned with an endorsement “insufficient funds”. Thereupon, the complainant issued Notice to the accused by registered Post A.D. as well as by U.P.C. on 26/4/2002, which appeared to have been received by the accused on 30.4.2002. However, the accused have not made the payment and given false and evasive reply. The reply to the notice dated 8.5.2002 has been given by the accused No.2, whereas the reply to the notice dated 9.5.2002 has been given by the accused Nos. 3, 4 & 5. Therefore, the complaint has been filed by the complainant against the accused for the offence punishable under Section 138 read with Section 141 of the Negotiable Instruments Act and under Sections 420 read with Section 114 and 120(B) of I.P. Code before the Court of learned Metropolitan Magistrate, Ahmedabad.
3. Thereafter, the present respondents No.2, 3 & 4 – original accused Nos. 3, 4 & 5 have filed application for discharge on the ground that they are not taking any part in the administration of accused No.1 – firm, which is also mentioned in the Partnership Deed and they are sleeping partners. The learned Magistrate has considered the said application for discharge and acquitted the present respondents No.3, 4 & 5 from the offence alleged against them. Against the said order passed by the learned Metropolitan Magistrate, Court No.11, Ahmedabad, the original complainant has preferred this Revision Application.
4. Heard learned Advocate Mr.Raju for the petitioner, learned APP Mr. Jani, appearing on behalf of the respondent No.1 – State and Mr. S.A. Khan, appearing on behalf of the original accused Nos.3, 4 & 5.
5. Learned Advocate for the petitioner has contended that the impugned order is without appreciating the facts and the provisions of law. He has contended that the respondents are the partners and, therefore, they are responsible to the partnership firm for the conduct of its business. He has contended that the offence under Section 138 of N.I. Act is a summons triable and from the provision of the Code of Criminal Procedure there is no provision that in summons triable case the accused can be discharged. Therefore, the learned Magistrate has committed grave error in discharging the accused from the summons triable case. He has also relied upon the decision of the Hon'ble Apex Court, reported in (2001) 6 SCC 30 wherein it has been observed that “the provisions of Section 258 Cr.P.C. which deals with the discharge of accused in summons triable cases, does not apply to cases instituted upon a complaint.” Relying upon the said decision, the learned Advocate for the petitioner has contended that the present case is instituted on a complaint and hence the endeavour made by the accused to find help from Section 258 is of no avail.
6. Learned Advocate Mr. Khan for the respondents No.2, 3 & 4 – original accused Nos. 3, 4 & 5 has fairly admitted that he is not in a position to convince this Court that there is any provision in Cr.P.C. that in summons triable case the accused should have been acquitted by the learned Magistrate on the application for discharge. I have also heard learned A.P.P. Mr. Jani.
7. Heard the learned Advocates for the respective parties. I have also perused the record and also gone through the provision of law. It appears that in this matter, the court has not entered into the merits of the matter, but, simply without considering the question of law as to whether in summons triable case the Court has power to acquit the accused on discharge application or not, has granted the discharge application and acquitted the accused Nos.3, 4 & 5 on the basis of producing the partnership deed which shows that they are not taking any part in the administration of the accused No.1 – firm and they are the sleeping partners. I am, therefore, of the opinion that the learned Magistrate has committed grave error in acquitting the respondents – accused on their filing discharge application without considering the question of law.
8. In view of above, this Revision Application is allowed. The order dated 21.11.2003 passed below Exh.2 in Criminal Case No. 1012 of 2002 by the learned Metropolitan Magistrate, Court No.11, Ahmedabad is quashed and set aside. The matter is remanded to the Court of learned Metroplitan Magistrate, with direction to decide the criminal case afresh purely on merits, after giving full opportunity of hearing to both the parties and in accordance with law, as early as possible, preferably within a period of six months from the date of receipt of Record & Proceedings. The criminal case be restored at its original file. Rule is made absolute accordingly. Office is directed to send Record & Proceeding, if any, to the trial Court forthwith.
(Z.K.SAIYED, J.) sas