BHAVESH BHARATBHAI MEHTA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Heard learned Advocates, Mr. Jani for the petitioners, Mr. Mehul Sharad Shah for the respondent No. 2 and the learned A.P.P. Mr. Divetia for the respondent No. 1.

(2.) A common question of law arises in all these applications and, therefore. these applications are disposed of by this common judgment with the consent of the learned Advocates. The question that has been posed for consideration by the Court is whether in a case where the person committing an offence under Sec. 138 of the Negotiable Instruments Act, 1881, (hereinafter referred to as "the Act") is a Company, the notice, envisaged under Sec. 138 of the Act is required to be given to every person, who at the time the offence was committed, was in charge of and was responsible to the company for the conduct of the business of the company as well as the company.

(3.) The short facts giving rise to these applications are that the respondent No. 2 is a creditor of the partnership firm named and styled as M/s. Paint Chem, having its business at Mumbai. One Shri Bharatbhai Mehta, who held out himself to be the partner in the said M/s. Paint Chem (hereinafter referred to as the "accusedfirm") had entered into certain business transactions with the respondent No.- 2- firm. In due discharge of its liability, the accused-firm issued five cheques for various amounts, which on presentation to the bank, were returned unpaid by the bank on. which they were drawn. The cheques were drawn by the firm and were signed by Shri B. B. Mehta a partner in the firm. Believing that Shri Bharatbhai Mehta who had been holding out himself to be a partner in the accused firm was Shri B. B. Mehta, notice as envisaged under Sec. 138 of the Act was given to the firm as well as Shri Bharatbhai Mehta. The notice given to the firm was received by Shri B. B. Mehta and was replied to by Shri B. B. Mehta. In spite of the notice, it is alleged, the accused-firm failed to make payment of the cheque amounts, giving rise to five complaints against the accused firm and Shri Bharatbhai Mehta. Pursuant to the said complaints, five cases being Criminal Case Nos. 4778, 4779, 4776, 4777 and 4775 of 1994 were instituted against the accused-firm and Shri Bharatbhai Mehta. Pending the trial, on 16/12/1995. Shri Bharatbhai Mehta moved an application for discharge claiming that he was not a partner in the accused firm and in support of his claim, produced a partnership deed. It was for the first time made known to the complainant that the present petitioners were the partners in the accused firm. The application for discharge made by Shri Bharatbhai was rejected on 30/07/1996. The complainant, having been made aware of the true position, on 26/06/1996, moved an application Ex. 40 to arraign the present petitioners as accused persons in the above referred Criminal cases. By an order dated 30/07/1996, the said application was allowed- Feeling aggrieved, the petitioners have preferred the above applications under Sec. 397 Cr. P.C.