Pushpa Arora vs State of Punjab and Others

Nirmaljit Kaur, J.—This is a petition u/s 482 Code of Criminal Procedure for quashing of complaint No. 256 dated 05.08.2006 u/s 138 of the Negotiable Instrument Act and quashing of further proceedings in the abovesaid complaint.

The facts, as stated in the petition, are that the Petitioner is a sole proprietor of M/s Guru Kirpa Auto Sales 182, Model Town, Pathankot and deals in sale of Automobile, Truck parts and spare parts. She is paying VAT and has also a registration certificate under Punjab VAT Act 2005. She also got a registration certificate issued by the Excise and Taxation Officer, Pathankot, in which, it is certified that M/s Guru Kirpa Auto Sales having only one proprietor i.e. the present Petitioner. One another firm dealing in Auto Mobiles Sales is existing in the name of M/s New Guru Kirpa Auto Sales, Model Town, Pathankot. The said New Guru Kirpa Auto Sales is a partnership firm came into being on 23.12.2004 and is having two partners, namely, Amrik Singh son of Ujagar Singh and Jatinder Singh son of Gurcharan Singh. The same is evident from the partnership deed enclosed as P-3. The said New Guru Kirpa Auto Sales also applied for registration certificate under Punjab VAT Act 2003, which is a different firm from the firm of the Petitioner. The said firm was having some business dealing with Respondents No. 2 and 3. The proprietor of the said firm issued a cheque dated 20.05.2006 to M/s Ginam Enterprises for a sum of Rs. 1,81,600/-which was signed by both the partners of M/s New Guru Kirpa Auto Sales, whereas, the complaint was filed by Respondents No. 2 and 3 against the Petitioner u/s 138 of the Negotiable Instruments Act read with Section 420 IPC and the present Petitioner was arrayed as accused No. 4.

It is apparent from the above facts that the Petitioner has got nothing to do with the firm M/s New Guru Kirpa Auto Sales and neither the cheque has been issued by the Petitioner nor she is the partner, director, proprietor or employee of the said firm i.e. M/s New Guru Kirpa Auto Sales.

Reply on behalf of Respondents No. 2 i.e. S.C. Malhotra, Proprietor M/s Ginam Enterprises, Moti Nagar, Ludhiana and Respondent No. 3 i.e. M/s Ginam Enterprises, Moti Nagar, Ludhiana through its proprietor S.C. Malhotra has been filed, stating therein, that both the firms were interconnected with each other and that the two firms are also having the same address and the cheque given by the partners of M/s New Guru Kirpa Auto Sales is in connivance and consent of the Petitioner.

Learned Counsel for the parties were heard.

From the perusal of the cheque, as well as, the partnership deed, it is clear that neither the Petitioner is a partner of the firm M/s New Guru Kirpa Auto Sales nor the signatory of the cheque, in question. The Petitioner is also not stated to be responsible for the conduct of business of the firm M/s New Guru Kirpa Auto Sales in any capacity whatsoever. In fact, para 4 of the complaint reads as under:

That in order to partially discharge their legal liability towards the complainant, accused Nos. 2 and 3 as partners of firm accused No. 1 issued cheque No. SQR-160733 dated 20.05.2006 for Rs. 1,81,600/-drawn on Punjab National Bank, Mohan Market, Pathankot. At the time of issuance of the said cheque, accused Nos. 2 to 4 assured the complainant that the said cheque will be encashed on its presentation in the bank and on this assurance only, the complainant accepted the said cheque.

The allegation that the Petitioner assured the complainant that the said cheque will be encashed, is vague.

In the reply filed, the Registration Certificate P/1 showing the Petitioner as sole proprietor of M/s Guru Kirpa Auto Sales and the Partnership Deed of M/s New Guru Kirpa Auto Sales P/3 showing as two partners i.e. accused/Respondents No. 2 and 3, is not denied. Para 6 of the reply reads as under:

That para No. 6 of the petition is correct to the extent that M/s New Guru Kirpa Auto Sales was having some dealing with Respondents No. 2 and 3. It is wrong that the Petitioner has nothing to do with the firm M/s New Guru Kirpa Auto Sales. The cheque given by two partners of M/s New Guru Kirpa Auto Sales is in connivance and consent of the Petitioner. The two partners who issued the cheques also represented themselves to be the partners of Guru Kirpa Auto Sales. That if the cheque in question is not signed by the Petitioner then as per law, it does not mean that she is not liable on the behalf of said firm.

The above averment in the reply, whereby, some false representation is made by the partners of M/s New Guru Kirpa Auto Sales does not, in any way, makes the Petitioner liable.

Hon''ble the Supreme Court in the case of Monaben Ketanbhai Shah and Another Vs. State of Gujarat and Others, , while quashing of criminal complaint, in somewhat similar circumstances, held in paras 5 and 6 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 respondents/complainant 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, was in charge of and was 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 the firm; they may be ladies and others who may not know anything about the business of the firm. The primary responsibility is on the complainant to make necessary averments in the complaint so as to make the accused vicariously liable. For fastening the criminal liability, there is no presumption that every partner knows about the transaction. The obligation of the appellants to prove that at the time the 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 Vs. 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 quahsed in Smt. Katta Sujatha Vs. Fertilizers and Chem. Travancore Ltd. and Another, , since in the complaint it was not stated that the accused was in charge of the business and was responsible for the conduct of the business of the firm nor was there any other allegation that she had connived with any other partner in the matter of issue of cheque.

Similar view was held by Hon''ble the Apex Court in the case titled as Smt. Katta Sujatha v. Fertilizers and Chem. Travancore Ltd. and another reported as 2002(4) R.C.R. 502. Hon''ble the Apex Court quashed the complaint, wherein, there was no allegation that the partner was incharge and responsible to the conduct of business or involved in any way and while describing the term "person incharge" held as under:

xxx xxx xxx Indeed the same question has come up before this Court for examination in State of Karnataka Vs. Pratap Chand and Others, wherein the question as who is a "person incharge" of business of firm in the context of Section 18A, Drugs and Cosmetics Act, 1940 was considered by this Court. This Court explained the meaning by observing that the term "person incharge" must mean that the person should be in over all control of the day to day business of the company or firm. The person should be a party to the policy being followed by a company and yet not be in-charge of the business of the company or may be incharge of but not in overall charge or may be in charge of only some part of business.

In the present case, as already held, there is no allegation that the Petitioner was incharge of the firm M/s New Guru Kirpa Auto Sales. The partnership deed clearly shows that the present Petitioner is not a partner of the said firm nor a director nor an employee. In fact, the Petitioner is not even a signatory of the said cheque. There is no allegation that the Petitioner is responsible for the conduct of the business of the firm M/s New Guru Kirpa Auto Sales. The continuation of the proceedings against the present Petitioner are, therefore, nothing but an abuse of process of law and is not maintainable against her.

For the reasons abovementioned, this Court has no other option but to hold that the allegations made in the complaint petition, even if are taken to be correct in their entirety, do not disclose any offence as against the present Petitioner. Accordingly, the complaint No. 256 dated 05.08.2006 u/s 138 of the Negotiable Instrument Act and further proceedings in the abovesaid complaint qua the present Petitioner, are, hereby, quashed and the present petition is, accordingly, allowed.