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2018 Supreme(Bom) 2729
IN THE HIGH COURT OF JUDICATURE AT BOMBAY AT AURANGABAD BENCH
Sangitrao S. Patil, J.
Anil Rampratap Goyal - Appellant
Versus
Katyayanji - Respondent
Criminal Writ Petition No. 148 of 2018 with Criminal Writ Petition No. 149 of 2018
Decided On : 03-08-2018
Swapnil Patil, Advocate for petitioner; P.R. Katneshwarkar, Advocate for respondents
Headnote:
Negotiable Instruments Act – Section 138 and 141 – partnership firm – Dishonour of Cheque - Respondent filed complaints bearing against accused partnership firm Drugs Division, Swami Complex, Sarojini Devi Road, Jalna, and three others, on say that they are partners of accused – Present petitioner is respondent, accused well as present petitioner being partners of accused were looking after day-today business transactions when cheques in question were issued – Responsible for conduct of business of accused further stated that petitioner approached respondent and requested to lent certain amount for the business of accused Accordingly respondent lent by issuing cheques bearing drawn on HDFC Bank, Branch Jalna – Held, Petitioner has not been prosecuted merely on a bald statement that he was in-charge of and was responsible to business of accused no.1 - Firm. A specific role has been attributed against him to show that he is in-charge of and responsible to business of accused – Consequently judgment in case of Anita Malhotra be of no help to petitioner – Case it has been held that though it is not proper for High Court to consider defence of accused or conduct a roving enquiry in respect of merit of accusation, but if on face of document which is beyond suspicion or doubt placed by the accused and if it is considered accusation against accused cannot stand, in such a matter, in order to prevent injustice or abuse of process, it is incumbent on High Court to look into those document/documents which have a bearing on matter even at initial stage and grant relief to person concerned by exercising jurisdiction – Learned Sessions Judge has rightly considered facts and circumstances of case and rightly held that defence of petitioner cannot be considered at this preliminary stage and that he will have to prove it by producing a concrete evidence at time of trial impugned judgment is quite speaking do not find any reason to interfere in findings recorded by learned Sessions Judge – Appeal rejected.
JUDGMENT
Sangitrao S. Patil, J. - The parties to these Writ Petitions are the same and the questions proposed to be considered therein also are identical. Therefore, they are being decided by this common judgment.
2. The respondent filed complaints bearing numbers 1732 of 2016 and 1715 of 2016 of the Negotiable Instruments Act the Act", for short) against accused no.1, a partnership firm namely, M/s.Rampratap Ghanshamdas Drugs Division, Swami Complex, Sarojini Devi Road, Jalna, and three others, on the say that they are partners of accused no.1. The present petitioner is accused no.4. According to the respondent, accused nos.2 and 3 as well as the present petitioner, being partners of accused no.1, were looking after the day-today business transactions when the cheques in question were issued. They were responsible for the conduct of the business of accused no.1. It is further stated that the petitioner approached the respondent and requested to lent certain amount for the business of accused no.1. Accordingly, the respondent lent Rs. 10,00,000/on 04.10.2013 and Rs. 6,00,000/on 19.08.2013 by issuing cheques bearing numbers 112808 and 071467 drawn on HDFC Bank, Branch Jalna. The petitioner encashed those cheques and utilised the said amounts for the business of accused no.1. It is further stated that the petitioner paid nominal interest on the amounts of loan. However, accused nos.1 to 3 and the present petitioner failed to repay the loan amounts to the respondent, despite repeated demands. Ultimately, accused nos.1 to 3 and the petitioner issued cheques in the sums of Rs. 10,00,000/and Rs. 6,00,000/drawn on Sundarlal Sawji Cooperative Bank Ltd., Jintur, Branch Jalna on 30.03.2016, which were signed by accused no.2 being the authorised signatory of accused no.1 - partnership firm. The cheques were dishonoured and returned to the respondent with the remark "exceeds arrangement" on 22.06.2016. The respondent sent demand notices on 21.07.2016 and called upon accused nos.1 to 3 and the present petitioner to pay the cheque amounts. Accused nos.1 and 2 refused to accept the notices. The petitioner (accused no.4) received the notices. However, he sent the replies dated 25.07.2016 and denied his liability to pay the cheque amounts, on the say that he had no concern whatsoever with the partnership firm since there has been change in the partnership. The respondent then filed complaints for the offence punishable under section 138 of the Negotiable Instruments Act ("the Act", for short) for dishonour of the above mentioned cheques. The learned Magistrate considered the contents of the complaints, supported by the affidavit of the respondent and the documents annexed thereto and found sufficient grounds to proceed against accused nos.1 to 4. He, therefore, issued process for the said offence as per the orders dated 17.11.2016.
3. Being aggrieved by the orders issuing process against the petitioner, he filed Criminal Revision Nos.7 of 2017 and 8 of 2017. The learned Sessions Judge, Jalna, heard both sides and found that there was no substance in the claims made by the petitioner and therefore, dismissed the said Revision Applications vide the common judgment and order dated 15.01.2018. Being aggrieved by the said common judgment and order, the petitioner has preferred these Writ Petitions.
4. The learned Counsel for the petitioner submits that the petitioner is retired from the partnership firm on 01.04.2014. Accordingly, it was reported to the Assistant Registrar of Firms, Aurangabad. The name of the present petitioner came to be deleted as partner of accused no.1 - Firm in the register of partnership firms. Accused no.3 came to be added as partner of accused no.1 - Firm with effect from 05.08.2018. The addition of accused no.3 as partner of accused no.1 - Firm was within the knowledge of the respondent. Therefore, the respondent issued demand notices to accused no.3 and also arrayed him as accused no.3 in the complaints. Therefore, the re
