FRIDGEHOUSE Vs. G JAGANATHAN

JUDGEMENT

(1.) The petitioners 2 to 8 in Crl. O.P. No.6033/12, who are the partners of the first petitioner firm, challenged the 138 proceedings initiated by the respondent herein/petitioner in Crl. O.P. No.29237/12. The case of the respondent herein is that he was a partner along with petitioners 2 to 8 in the first petitioner/firm and doing business. Since the respondent expressed his intention to get relieved from the partnership business, he was relieved from business by virtue of reconstitution deed dated 1st April, 2010. Pursuant to the same, he was paid his share from the assets of A-1/firm. In this regard, the petitioners issued the subject cheque No.376511 dated 1st Oct., 2011 for a sum of Rs.1,20,00,000/= (Rupees One Crore Twenty Lakhs only) towards his share in the A-1/firm. The said cheque was presented to the bank for collection on 18th Oct., 2011 and the same was dishonoured on 20th Oct., 2011. After issuing notice, the impugned complaint was filed before the trial court. Challenging the same, the accused are before this Court.

(2.) Mr.Kalyanasundaram, learned counsel for the petitioners submits that the cheque No.376577 was stolen by the respondent and, thereafter, it was presented for encashment. Moreover, he points out that with regards to the averments made in the complaint, there is no proper averment in the body of the complaint implicating the petitioners 2 to 8 and, that the petitioners 2 to 8 are only sleeping partners of the firm and they are not actively involved in the affairs of the firm. He specifically contends that no averment specifying the role of each of the partners have been mentioned in the body of the complaint. Learned counsel for the petitioners relies upon the judgment of the Hon ble Supreme Court in SMS Pharmaceuticals Ltd. Vs Neeta Bhalla, 2005 SCC(Cri) 1975 to stress the point that the complaint should have necessary averment that at the time of commission of the offence, the accused persons were in-charge of the affairs of the firm. He also relies upon another judgment of the Hon ble Apex Court in National Small Industries Corporation Ltd. Vs Harmeet Singh Paintal & Anr., 2010 3 SCC 330.

(3.) With regard to the issuance of summons to the accused, the Magistrate has to apply his mind to the facts of the case and the law and after carefully scrutinizing the evidence brought before him and he must issue summons to the accused is the dictum laid down by the Hon ble Supreme Court in Pepsi Foods Ltd. Vs Special Judicial Magistrate, 1998 SCC(Cri) 1400. Relying upon the above judgments, learned counsel for the petitioners submits that the complaint has to be quashed.