JITENDRA M PAREKH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By way of this application under Section 482 of the Criminal Procedure Code, the applicants original accused Nos. 3 and 5, the partners of Mansukhlal Gordhandas Parekh partnership concern, have prayed to quash Criminal Complaint No. 4948 of 2006 pending before the learned Judicial Magistrate First Class, Ahmedabad (Rural).

(2.) That a criminal complaint has been filed by the respondent No.2 original complainant in the Court of Judicial Magistrate First Class, Ahmedabad (Rural) against the original accused No.1 Mansukhlal Gordhandas Parekh partnership concern and other co-accused being partners of the said partnership firm for the offence punishable under Section 138 read with Section 141 of the Negotiable Instrument Act (for short SN.I.Act ) and under Sections 406 and 420 of the Indian Penal Code (for short SIPC ). The applicants are original accused Nos. 3 and 5 being partners of the aforesaid original accused partnership concern. It is alleged in the complaint that an amount of Rs.8,88,000/- was given by the complainant to the firm by way of loan and on asking and demanding repayment, accused agreed and were ready to pay back the entire consideration by executing covenant of dissolution dated 27.06.2005 and the aforesaid amount of Rs.8,88,000/- was paid by the original accused more particularly by drawing various cheques. It is alleged in the complaint that the aforesaid cheques were handed over by the accused by signing in presence of complainant and return the debt by cheques with a specific understanding that the aforesaid cheques shall be realized. It is averred in the complaint that on its presentation of first two cheques of Rs.1 lac each, he received the payment through banker of complainant, thus sum of Rs.2 lacs has been received by the complainant amongst the aforesaid cheque amount. It is further averred that before the complainant deposited the rest of the cheques for its payment, accused approached the complainant and requested vide letter dated 27.12.2005, that the accused did not receive payment as expected and sought extension in re-payment of the amount till 15.03.2006 instead of 29.12.2005. That thereafter, the complainant deposited cheques bearing Nos. 007665 and 017959 dated 15.03.2006 drawn Development Credit Bank, Rajkot Branch for Rs.1,00,000/- and Rs.38,000/- respectively on 01.05.2006. However, said cheques have been returned by the Bank with an endorsement SPayment Stopped by Drawer . It is averred in the complaint that thereafter, statutory notice as required under the provisions of the Negotiable Instrument Act was issued and in spite of receipt of the same, payment has not been paid by the accused persons within stipulated time and therefore, the complainant has preferred the aforesaid complaint and the learned trial Court has issued summons against all the accused inclusive of the petitioners for the offence punishable under Section 138 of the Negotiable Instrument Act. Being aggrieved and dissatisfied with the same, the applicants original accused Nos. 3 and 5 have preferred the present application under Section 482 of the Criminal Procedure Code to quash aforesaid complaint.

(3.) Shri Trivedi, learned Advocate appearing on behalf of the applicants has vehemently submitted that no case is made out against the applicants holding the applicants vicarious liable under Section 141 of the Negotiable Instrument Act. It is submitted that merely as the applicants were partners they cannot be held vicarious liable. It is submitted that in view of the judgment of the Hon'ble Supreme Court in the case of Sarojkumar Poddar V/s. State (NCT of Delhi) & anr. reported in 2007(2) Scale 36 and the decision of the Hon'ble Supreme Court in the case of S.M.S. Pharmaceuticals Ltd. V/s. Neeta Bhalla & Anr. reported in (2005) 8 SCC 89, impugned complaint is required to be quashed and set aside. It is submitted that to attract the provisions of Section 141 of the Negotiable Instrument Act, it is necessary to specifically aver in the complaint that how the other partners are involved in the day to day activity of the company and without making any averment no any vicarious liability can be fastened on the present applicants. It is further submitted by him that other co-accused and original accused against whom summons were issued by the trial Court in the complaint in question, approached this Court by filing Criminal Misc. Application No. 12309 of 2006 and the learned Single Judge of this Court vide order dated 22.03.2007 has been pleased to quash and set aside the complaint in question so far as those partners are concerned. Therefore, it is requested to allow the present application and quash and set aside the Criminal Complaint No. 4948 of 2006 qua the applicants.