DINESH HARKCHAND SANKLA Vs. KURION LTD

JUDGEMENT

(1.) PETITIONER being accused No. 2 in C. C. Nos. 26054/2004. 26072/2004, 26053/2004, 26056/20 04, 26055/2004, 26073/2004, and 26071/2004, pending on the file of 14th Addl. Chief Metropolitan Magistrate, Bangalore, has sought for quashing the said proceedings.

(2.) BASED on the complaints lodged by respondent herein against the petitioner and two others alleging offence under Section 138 of Negotiable Instruments Act, the present proceedings are initiated. The complaints disclose that the cheques issued by the accused for repayment of the legally recoverable debts due to the complainant's company, were, on presentation, returned by the concerned Bank with an endorsement of "alteration in date and drawer's signature differs". The statutory notices issued by the complainant to the petitioner herein returned with an endorsement of "not claimed". As the amounts involved in the cheques were not paid by the accused, complaints came to be filed. The principle contentions raised by the learned counsel for the petitioner are as under :

(3.) ELABORATING his contentions, Sri V. P. Shintre, learned counsel appearing on behalf of the petitioner contends that, no where in the complaints and in the sworn statements it is disclosed that the petitioner is a partner and that he is actively involved in day-to-day affairs of the partnership firm. The said contention of the learned counsel for the petitioner cannot be accepted, inasmuch as, Paragraph 4 of the complaint discloses that the petitioner herein is the partner of the 1st accused-firm. The complaint further discloses that the accused had purchased materials from the complainant's company, and towards clearance of part payment of the outstanding balance amount, the accused had issued Account Payee cheques. Thus, the complaint prima facie discloses that the petitioner is a partner and is involved in day-to-day affairs of the business of the firm. Added to it, the question as to whether the petitioner is actively involved in the affairs of the firm or not, is a pure question of fact, which cannot be decided in this petition filed under Section 482 of Cr. P. C. The said question shall have to be decided based on the material to be collected during the course of the trial. The aforesaid view of mine is supported by the judgment of the Apex Court in the case of S. V. Muzumdar v. Gujarat State Fertilizer Co. , ltd. , reported in 2005 SCR (Cri) 567, wherein it is observed thus :