Dr. Anand Kumar Goyal vs State of Haryana and Another

Vinod K. Sharma, J.

C.M. No. 32393. of 2008.

Criminal Mis. No. 40416-M of 2007.

This order shall disposed of Criminal Misc. Nos. 40415-M of 2007, 40416-M of 2007 and 40417-M of 2007 all titled as Dr. Anand Kumar Goyal v. State of Haryana and Anr. as a common question of law and facts is involved in all these petitions.

The petitioner has filed this petition u/s 482 of die Code of Criminal Procedure (for short the Code) for quashing of Criminal Complaint No. 461 of 2005 titled as Summer Chand Sulekh Chand Anaj Mandi, Panipat v. Shree Anand Rice Mills and Ors. pending in the court of Shri Hem Raj Verma, JMIC Panipat. Petitioner has also challenged summoning order dated 14.12.2005 (Annexure P-7) and subsequent proceedings arising therefrom.

The petitioner is a registered medical practitioner and has been registered at No. 18444 with Ayurvedic and Unani Medical System Board, Haryana since 26.11.1987 and since then he is in active medical practice and running his clinic at Jain Market, Railway Road, Karnal. The petitioner claims that he was the sleeping partner in M/s Shree Anand Rice Mills. A complaint u/s 138 of the Negotiable Instruments Act, 1881 (for short ''the Act'') has been filed by the respondent No. 2 against the petitioner. The petitioner also prays that he ceased to be the partner in dissolution deed dated 25.08.2006, Annexure A-3 with the petition, executed between the parties. Respondent No. 2-M/s Sumer Chand Sulekh Chand Anaj Mandi, Panipat, filed a complaint u/s 138 of the Act against the firm and its partners including the petitioner. The allegations made in the complaaint read as under:

The complainant most respectfully submits as under:

That the complainant firm is a registered firm vide Serial No. 59 of 2005-06 dated 11.10.2005 and complainant Sulekh Chand being the partner of complainant firm is fully competent to file the complaint against the accused persons.

That the complainant deals in all kind of material like wheat, paddy etc. and has a regular account with the accused persons and a balance of Rs. 17,26,056.30 is still outstanding against the accused persons as on 31.3.2005. The accused have given a balance confirmation letter in this respect. During the course of transaction and in discharge of their liability, the accused have issued a cheque No. 573355, dated 28.9.2005 of Rs. 5,61,040.30 of Punjab National Bank, Karnal.

That the complainant deposited the said cheques in their accounts with their bankers i.e. The Oriental Bank of Commerce, G.T. Road, Panipat during the period of its validity, but it is matter of great sorrow and surprise that die bank of the accused persons returned the said cheque unpaid on the grounds of "INSUFFICIENT FUNDS" vide memo dated 14.10.2005.

That the accused persons had sent the above said cheque to complainant with dishonest intention and same has been proved by dishonouring of the cheque mentioned above of the accused for want of "INSUFFICIENT FUNDS". Thus, the accused persons have cheated and misguided the complainant and they are also equally liable for prosecution u/s 138 of N.I. Act, 1881.

That the complainant after that sent the legal notice to the accused persons through his counsel on (sic)

Received back with report that the accused Nos.l to 4 do not live at the given address even the U.P.C. is not received back and accused Nos. 5 and 6 despite of service of notice have not complied with the notice and they have not made the payment of dishonoured cheque along with interest thereon till now within 15 days as stipulated under the provisions of the Act. Thus, the accused persons have committed the offence u/s 138 of the Negotiable Instruments Act as amended up to date.

That the complaint has been filed within stipulated time and offence have been committed within the jurisdiction of the Hon''ble Court and the Hon''ble Court has powers to prosecute the accused persons and punish for offence committed by them.

It is, therefore, prayed that the accused persons may kindly be summoned, tried and punished jointly according to the provisions of law.

The contention of the learned Counsel for the petitioner is that the complainant and the summoning order of the petitioner are liable to be quashed as in the complaint no allegation has been made that the petitioner was responsible for conduct of the business of the partnership firm. In the absence of such averment, the complaint and the summoning order and subsequent proceedings are liable to be quashed.

In support of his contention learned Counsel the for the petitioner has placed reliance on the judgment of Hon''ble Supreme Court in the case of Monaben Ketanbhai Shah and Another Vs. State of Gujarat and Others, wherein Hon''ble Supreme Court has been pleased to lay down as under:

From the above, it is evident that in the complaint there are no averments against the appellants except stating in the title that they are partners of the firm. Learned Counsel for the respondent complainants contended that a copy of the partnership deed was also filed which would show that the appellants were active in the business. No such document was filed with the complaint or made part thereof. The filing of the partnership deed later is of no consequence for determining the point in issue. Section 141 does not make all partners liable for the offence. The criminal liability has been fastened on those who, at the time of the commission of the offence, were in-charge of and were responsible to the firm for the conduct of the business of the firm. These may be sleeping partners who are not required to take any part in the business of me firm; they may be ladies and others who may not know anything about the business of the firm. The primary responsibility is on die complainant to make necessary averments in the complaint so as to make the accused vicariously liable. For fastening the criminal liability, mere is no presumption that every partner knows about the transaction. The obligation of the appellants to prove that at the time of offence was committed they were not in-charge of and were not responsible to the firm for the conduct of the business of the firm, would arise only when first the complainant makes necessary averments in the complaint and establishes that fact. The present case is of total absence of, requisite averments in the complaint.

In K.P.G. Nair v. Jindal Menthol India Ltd. This Court held that the substance of allegations read as a whole should answer and fulfill the requirements of the ingredients of Section 141. The criminal complaint was quashed in Katta Sujatha v. Fertilizers and Chemicals Travancore Ltd since in the compliant it was not stated that the accused was incharge of the business and was responsible for the conduct of the business of the firm nor was mere any other allegation that she had connived with any other partner in the matter of issue of cheque.

Under the aforesaid circumstances, we set aside the impugned judgment of the High Court and restore the order of the magistrate discharging the appellants. The appeal is allowed accordingly.

Learned Counsel for the petitioners further contends that this view has been further reiterated by Hon''ble Supreme Court in the case of N.K. Wahi Vs. Shekhar Singh and Others, and in the case of Saroj Kumar Poddar v. State (NCT of Delhi) and Anr. 2007 (1) R.C.R. 741 : 2007 (1) C C C 597.

Keeping in view the fact that the complaint is totally silent with regard to the role of the petitioner in the conduct of the business of the firm and he is not signatory to the cheque and in view of the law settled by Hon''ble Supreme Court no offence u/s 138 of the Act is made out against the petitioner even if the allegations in the complaint are taken on their face value, in view of non-compliance of Section 141 of the Act. Thus, continuation of proceedings against the petitioner would be nothing but misuse the process of the court.

Consequently, the petition is allowed. The complaint summoning order and subsequent proceedings qua the petitioner only are ordered to be quashed.