KIRTANE AND PANDIT Vs. SUNDERLAL BALAJI

JUDGEMENT

(1.) This writ petition challenges the issuance of process against the petitioner i.e the accused No.5. The petitioner is a firm of chartered accountants. Respondent No.1 is the complainant and Respondent Nos.2 to 5 are the original accused Nos.1 to 4 in regular criminal case no.120/93 filed the court of the JMFC, Pune under sections 420, 409 r/w 34 of the Indian Penal Code. The complainant, i.e. Respondent No.1, and Respondent Nos.2 to 5 are the Directors of a private limited company which was set up in Pune. The Petitioner firm was engaged as the chartered accounts for the private limited company. The petitioner firm was required to draft the articles of association. It appears that some time later, after the company was set up, differences and disputes arose amongst the Directors due to which the complainant Respondent No.1 was removed as a Director. The complainant had filed Regular Civil Suit No.860 of 1988 which was dismissed on 14.8.1998, for default. A Miscellaneous application No.714 of 1998 was then preferred by the complainant for restoring the suit. This application was dismissed on 20.9.1999. Therefore, the order dismissing the civil suit has attained finality and the complainant is no longer a Director of the company.

(2.) Thereafter, on 3.3.1989, the complainant lodged a complaint against Respondent Nos.2 to 5 and the petitioner. However, the police did not take any action on the complaint being. The complainant therefore filed a complaint being C.C. No.120 of 1993 under sections 420, 409 r/w section 34 of the Indian Penal Code. The learned Magistrate directed an enquiry u/s 156(3) of the Code of Criminal Procedure. The police submitted its report on 8.6.1992 that there was no offence committed by the accused. However, the learned Magistrate issued process in exercise of his powers u/s 156 of the Code on 24.12.1993. The petitioner applied before the learned Magistrate for recalling the process on 12.8.1996. This application was rejected by the learned Magistrate on 18.11.1998. Criminal revision applications were preferred by the petitioner as well as the other accused. Both the criminal revision applications were heard together by the learned 9th Additional Sessions Judge and were dismissed. Hence, the present petition.

(3.) Mr.Mundargi, learned counsel appearing for the petitioner, submits that the complaint does not in any manner show the participation of the petitioner in any offence. He submits that the firm cannot be held vicariously liable for any offences and it was necessary for the complainant to mention the name of the person who was responsible for the alleged offences. The learned counsel draws my attention to the fact that the complaint does not disclose any offence committed by the petitioner which would tantamount to an offence u/s 409 and 420 r/w 34 of the IPC. He submits that all that the complaint reveals is that the petitioner firm was engaged as the chartered accounts of the company of which the complainant was one of the Directors, till he was removed. The complaint also mentions that the firm was engaged for the purposes of drawing up necessary documents when the Company was being established, including the articles of association. The learned counsel therefore, submits that the process issued against the petitioner must be quashed and set aside and the judgments of the learned Magistrate as well as the Sessions Judge need to be set aside.