SHANTABEN MOTICHANND MARU Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Present petition under section 482 of the Code of Criminal Procedure has been preferred by the petitioners - original accused Nos. 3 and 4 to quash and set aside the impugned complaint being Criminal Case No.6912 of 2006 filed by the original complainant - respondent No.2 under section 138 read with Sec. 141 of the Negotiable Instruments Act, pending in the court of learned 10th Judicial Magistrate (First Class), Jamnagar.

(2.) The respondent No.2 herein - original complainant has lodged the impugned complaint being Criminal Case No.6912 of 2006 under section 138 read with section 141 of the Negotiable Instruments Act, in the court of learned Chief Judicial Magistrate, Jamnagar for dishonour of the cheque No.249196 dated 15/5/2006 which was admittedly issued by the original accused No. 1 - Partnership Firm and signed by the original accused No. 2 as Partner of the original accused No.1 - Partnership Firm. In the said complaint, the learned Magistrate has directed to issue process against the petitioners - original accused Nos. 3 and 4 and others for the offences punishable under section 138 read with section 141 of the Negotiable Instruments Act. Hence the petitioners - original accused Nos.3 and 4 have preferred the present petition under section 482 of the Code of Criminal Procedure.

(3.) Mr.Nitin Amin, learned advocate appearing on behalf of Ms.Amee Yagnik, learned advocate appearing on behalf of the petitioners - accused Nos.3 and 4 has vehemently submitted that as such the petitioners have not committed offence under section 138 read with section 141 of the Negotiable Instruments Act, as alleged. It is alleged in the complaint that the cheque in question was issued by the accused No.1 - Partnership Firm,signed by the accused No.2 on 15/5/2006 and the same was dishonoured on 31/8/2006. It is submitted that as such the petitioners - original accused Nos.3 and 4 have already resigned/retired as Partners of the accused No.1 Partnership Firm way back on 1/5/2001. He has also produced on record the Deed of Retirement of the petitioners - original accused Nos.3 and 4, as Partners of the accused No.1 Partnership Firm, at Annexure-B to the petition. The factum of resignation/retirement of the the petitioners - original accused Nos.3 and 4, as partners of the accused No.1 Partnership Firm on 1/5/2001 has not been disputed by the original complainant - respondent No.2 herein. Therefore, relying upon the decision of the Honourable Supreme Court in the case of Harshendra Kumar D. Vs. Rebatilata Koley, etc. reported in 2011 (1) NIJ 228 (SC) : AIR 2011 SC 1090 it is requested to allow the present petition and to quash and set aside the impugned complaint so far as the petitioners herein - original accused Nos.3 and 4 are concerned.