Tara Chand and Others vs Dabkauli Trading Company

R.L. Anand, J.—This is a criminal revision filed by Tara Chand, Sat Pal, and Amar Nath and has been directed against the orders dated

13.9.1997 and 18.9.1997 passed by the Court of Judicial Magistrate 1st Class, Karnal, who summoned Tara Chand, Sat Pal and Amar Nath as

accused and framed charge u/s 138 of the Negotiable Instruments Act.

It is admitted case of the parties that Shri Tara Chand acting as a partner of M/s Bhagwati Rice Mill issued a cheque for a sum of Rs.

1,10,000/- in favour of M/s Dabkauli Trading Company. The cheque bounced as a result of which a complaint was filed u/s 138 of the Negotiable

Instruments Act read with Section 142 of the said Act against M/s Bhagwati Rice Mill and its three partners namely Tara Chand, Sat Pal and

Amar Nath. On the basis of that complaint the learned Magistrate vide order dated 13.9.1997 issued notices to all the partners asking them to

appear and face the trial. Later on the charge was framed u/s 138 of the Act against all the partners. Aggrieved by the said order, the present

revision.

The submission which has been raised by the learned counsel for the petitioner is that the cheque was issued under the signatures of Tara Chand

and in these circumstances the criminal liability, if any, could that be of Tara Chand and not that of Sat Pal and Amar Nath. On the contrary, the

learned counsel appearing on behalf of the respondent has placed reliance on Section 141 of the Act and submits that even Sat Pal and Amar Nath

are liable being the partners of M/s Bhagwati Rice Mill and the revision on their part should be dismissed as they can take the plea before the trial

Court that they had no knowledge with regard to the transactions conducted by the firm and they were not responsible for the affairs of the

partnership firm. In support of his contention Shri Kaushal relied upon a judgment of this Court in Kahan Chand Gupta v. Raj Kumar 1994(1)

R.C.R. 336. I do not subscribe to the argument raised by the learned counsel for the respondent because in the cited case it was the specific case

of the complainant made in the complaint itself that the accused were responsible for the business of the firm. These foundations were laid down in

order to make the accused liable. In the light of this premise the Hon''ble Lordship was pleased to make an observation that there cannot be any

quashment of the complaint u/s 138 on the ground that particular persons were sleeping partners and were not incharge and responsible for the

conduct of the business of the firm. Here the factare quite distinguishable. In para No. 2 of the complaint u/s 138 read with Section 142 of the Act,

the bare allegations levelled by the complainant are that respondents No. 2 to 4 i.e. Tara Chand, Sat Pal and Amar Nath are the partners of M/s

Bhagwati Rice Mill. It is further alleged by the complainant that accused Nos. 2 to 4 had purchased paddy from the complainant and in that

transaction accused No. 2 (Tara Chand) issued a cheque dated 30.10.1995 drawn on State Bank of India for a sum of Rs. 1,10,000/-. There is

not an iota of allegations that respondents No. 3 and 4 namely Sat Pal and Amar Nath were the incharge and responsible for the conduct of the

business of the firm. In these circumstances the judgment relied upon by the learned counsel for the respondent is not applicable to the facts in

hand.

Faced with this difficulty the counsel for the respondent submitted that in the preliminary statement of the complainant he has specifically alleged

that respondents Sat Pal and Amar Nath were equally responsible for the affairs of the firm and they were the incharge and were responsible for

the conduct of business of the firm. The argument raised by Shri Kaushal is not acceptable to this Court. If the complainant has become wiser

during the course of preliminary evidence such statement cannot make a fresh premise in order to summon and prosecute Sat Pal and Amar Nath.

The foundations were laid by the complainant in the complaint itself. Except for para No. 2 of the complaint, there is no other allegation qua Sat

Pal and Amar Nath. In these circumstances the learned Magistrate was not right in summoning Sat Pat and Amar Nath in order to face the criminal

liability and as such the charge against them could not sustain in the eyes of law.

In view of the above, the present revision succeeds in part and the summoning order vis-a-vis Sat Pal and Amar Nath is hereby set aside and

the charge framed against them is also stands quashed. Now the complaint shall proceed against Tara Chand only, who was the drawer of the

cheque.

With above observations, the present revision stands disposed of.