Smt. Sharda Devi vs The State of Jharkhand and Another

R.R. Prasad

Heard learned counsel appearing for the petitioner, learned counsel appearing for the Opp. Party No. 2 and learned counsel appearing for the State.

Learned counsel appearing for the petitioner submits that though this application had been filed on behalf of three petitioners-namely, Sashikant Bhadani, Ravikant Bhadani and Smt. Sharda Devi, but the application got dismissed, in view of the order dated 20.05.2010 as against the petitioner Nos. 1 and 2 i.e. Sashikant Bhadani and Ravikant Bhadani and thus, this application is now confined to petitioner No. 3-Smt. Sharda Devi.

This application, filed u/s 482 Cr.P.C. is directed against the order dated 13.04.2005 passed by learned Judicial Magistrate, 1st Class, Koderma in Complaint Case No. 325 of 2000 whereby and whereunder the prayer for discharge of the petitioner for the accusation punishable under Sections 420/406/120B of the Indian Penal Code and also u/s 138 of the N.I. Act was rejected.

The case of the complainant, as it appears from the complaint petition, is that the accused persons are the partners of a firm known M/s Madhusudan Bhadani and that as the accused persons were owing a sum of Rs. 1,95,000/- to him, the accused Sashikant Bhadani in conspiracy with other accused, issued two cheques in the name of the complainant for a sum of Rs. 1,95,000/- which on its deposit, got bounced.

On such allegation made in the complaint petition, the cognizance of the offences was taken under Sections 420/406/120B of the Indian Penal Code and also u/s 138 of the N.I. Act.

Subsequently, an application was filed for discharge on behalf of the petitioners and others but that was rejected on 13.04.2005, holding therein that prima facie case is made out against the petitioner.

Mr. N.K. Prasad, learned counsel appearing for the petitioner submits that the petitioner was never the partner of a firm known as M/s Madhusudan Bhadani during life time of her husband Madhusudan Bhadani. She was never the partner of the firm rather upon death of her husband, she became one of the partners of the firm by virtue of the Partnership Deed but at the time of issuance of cheques, the petitioner had never been the partner of the said firm and as such, on this count alone, no case is made out against the petitioner and hence, the court should have discharged the petitioner from the accusation but by not discharging the court below, has committed illegality.

Learned counsel, by referring to Section 141 of the N.I. Act, submits that apart from the person, who had issued the cheques, the partner of firm can also be held liable for offence u/s 138 of the N.I. Act, if the offence under Sections 138 of the N.I. Act is committed by a company and in that case, every person, who at the time of offence, was In-charge of and responsible to the company for the conduct of the business of the company and also the company shall be deemed to be guilty of the offence.

But here in that instant case, no such case has been made out by the complainant and as such, the petitioner, even if is a partner of the said firm, cannot be prosecuted for offence under N.I. Act and also for offence under the IPC.

Regard being had to the facts and circumstances as well as the allegations made in the complaint and also the provision referred to above, I do find sufficient force in the submission advanced on behalf of the petitioner.

There has been absolutely no allegation in the complaint that this petitioner-widow of late- Madhusudan Bhadani, at the time of offence i.e. at the time of issuance of a cheque, was In-charge of and was responsible to the company for the conduct of the business of a company and in such situation, no case is made out against the petitioner either for the offence under the N.I. Act or for the offence under the IPC but the court below without appreciating all these aspects of the matter, rejected the petition for discharge vide impugned order and hence, it suffers from illegality.

Accordingly, order dated 13.04.2005 passed by learned Judicial Magistrate, 1st Class, Koderma in Complaint Case No. 325 of 2000 whereby and whereunder the prayer for discharge of the petitioner from the accusation punishable under Sections 420/406/120B of the Indian Penal Code and also u/s 138 of the N.I. Act was rejected, is hereby set aside.

Consequently, the petitioner is discharged from the accusation punishable under Sections 420/406/120B of the Indian Penal Code and also u/s 138 of the N.I. Act.

In the result, this application is allowed.

Since the case is quite old, it is expected that the trial court would take endeavour to conclude the trial so far it relates to other accused.