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2011 (5) Supreme 548
SUPREME COURT OF INDIA
Aftab Alam and R.M. Lodha, JJ.
Sarojben Ashwinkumar Shah Etc. — Appellants
versus
State of Gujarat & Anr. — Respondents
Criminal Appeal Nos. 1554-1557 of 2011
(Arising out of S.L.P. (Crl.) Nos. 9527-9530 of 2010)
Decided on : 10-8-2011
Facts of the Case :
A Complaint alleging dishonour of cheque was filed herein in the instant case against a partnership firm and its partners. An Application was filed by complainant u/s 319 of Code thereafter for permitting to join accused 4 and 5 as accused. Order was passed by Magistrate Directing that Accused Nos. 4 and 5 be joined as accused and High Court maintained such direction.
2. Present Appeals have been filed against order of High Court whereby it refused to interfere with orders of Magistrate directing addition of appellant as an accused (Accused No. 5) in various complaints.
Findings of the Court :
After noticing provisions contained in Section 319 and its scope, High Court proceeded to hold that order of Magistrate did not call for any interference. High Court, however, failed to consider whether Magistrate had addressed to essential aspects before invoking his power under Section 319 of Code- Again High Court not adverted to question whether or not filing of copy of registration of firm by Accused Nos. 2 and 3 would be covered by expressions ‘in the course of any inquiry into or trial’ and ‘evidence’ occurring in Section 319 of the Code and also aspect as to whether such document could be treated as an evidence to show that appellant had committed an offence of cheating under Section 420 IPC. As regards criminal liability of a partner in the firm, there has to be evidence that at the time offence was committed, partner was in-charge of and was responsible to the firm for the conduct of the business of the firm. All these relevant aspects had not been considered by High Court at all. Impugned order of High Court was set aside. Appeals were allowed
Key Points: - The judgment discusses that criminal liability of a partner requires evidence that, at the time of the offence, the partner was in-charge of and responsible for the conduct of the firm. (!) - It analyzes the scope of Section 319 to add other persons as accused if evidence shows they committed an offence that could be tried with the existing accused. (!) (!) - It emphasizes that the added person’s trial must be de novo, with fresh examination of witnesses, and start afresh from the beginning, under Section 319(4). (!) (!) - It states that the court must be satisfied on the additional evidence that the other person has committed an offence and could be tried with the existing accused. (!) - The court should consider the stage of trial and the quantum of evidence collected, and whether there is a reasonable prospect of conviction against the newly added accused. (!) - It clarifies that evidence must be from the trial itself, not merely from the charge sheet or case diary, to justify adding a person under Section 319. (!) - It notes that the expressions "in the course of any inquiry into or trial" and "evidence" have to be addressed, especially regarding documents like firm registration copies and their relevance to the offence charged. (!) (!) - It states that the High Court's failure to consider essential aspects before invoking Section 319 can lead to setting aside an order adding accused. (!)
JUDGEMENT
R.M. Lodha, J. —
Leave granted.
2. These four appeals, by special leave, are directed against the common order of the Gujarat High Court whereby single Judge of that Court refused to interfere with the orders (all dated July 11, 2000) of the Judicial Magistrate First Class, Prantij directing addition of the present appellant as an accused (Accused No. 5) in various complaints.
3. For the sake of brevity and convenience, we shall refer to the facts from the appeal arising from complaint (Criminal Case no. 1132 of 1999) pending in the Court of Judicial Magistrate First Class, Prantij. Respondent no. 2—Gulamnabi Hebatkhan Sumara - filed a complaint against (i) M/s. Rashmi Builders, a partnership firm, (ii) Ashwinkumar Tribhovandas Shah and (iii) Chandravadan Gopaldas Thakkar in the Court of Judicial Magistrate, First Class, Prantij. It was alleged in the complaint that M/s. Rashmi Builders (Accused No. 1) is a duly registered partnership firm and Ashwinkumar Tribhovandas Shah (Accused No. 2) and Chandravadan Gopaldas Thakkar (Accused No. 3) are its partners. On the recommendation and advise of one Balkabhai alias Himatlal Dwarkadas Lal, a financial broker, the complainant lent and advanced a sum of Rs. 5 lakhs to the firm. The firm through its partner Ashwinkumar Tribhovandas Shah acknowledged the receipt of the said amount and also executed and delivered a promissory note for Rs. 5 lakhs on the same date.
Later in discharge of its liability, the firm through its partner (Accused No. 2) issued a cheque for Rs. 5 lakhs drawn on the Federal Bank of India, Fort Branch, Bombay and delivered the same to Balkabhai alias Himatlal Dwarkadas Lal who handed over the said cheque to the complainant along with the promissory note. The complainant presented the said cheque for encashment on May 31, 1999 with his Banker but the same was dishonoured on June 3, 1999 with the remark “account closed”. The complainant then sent a statutory notice of 15 days to the firm and its two partners which was received by them on or about June 23, 1999. The accused failed and neglected to make payment within the statutory period and instead in its reply dated June 29, 1999, the firm denied having entered into any financial transaction with the complainant. The complainant thus alleged that the accused have committed offence under Section 138 of the Negotiable Instruments Act, 1881 (for short, `N.I. Act’) and under Section 420 and Section 114 of the Indian Penal Code. The other complaints were lodged by Usmanmiya Nanumiya Ghori, Mohamad Umarkhan Akbarkhan Ghori and Daudbhai Rasulbhai Mansuri against the above three accused on the identical facts.
4. The Judicial Magistrate, First Class, Prantij took cognizance in the above complaints against the three accused, namely, (i) M/s. Rashmi Builders (a partnership firm), (ii) Ashwinkumar Tribhovandas Shah and (iii) Chandravadan Gopaldas Thakkar.
5. On November 4, 1999, the complainant in each of the complaints made an application under Section 319 of the Code of Criminal Procedure, 1973 (for short, ‘the Code’) for joining Paresh Lakshmikant Vyas and Sarojben Ashwinkumar Shah (appellant herein) as Accused Nos. 4 and 5 respectively. It was averred that Accused Nos. 2 and 3 have submitted a copy of the registration of the firm—M/s. Rashmi Builders (Accused No. 1) wherein the proposed Accused No. 4 and Accused No. 5 have been shown as the partners of the firm and in this view of the matter, it was prayed that complainant may be permitted to join them as accused.
6. The Judicial Magistrate First Class, Prantij, as noted above, has directed that Paresh Lakshmikant Vyas and Sarojben Ashwinkumar Shah (appellant herein) be joined as Accused Nos. 4 and 5 and the High Court maintained such direction.
7. Section 319 of the Code reads as under :
“S. 319. Power to proceed against other persons appearing to be guilty of offence.—(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the e
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