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2004(2) Bankmann 142
ANDHRA PRADESH HIGH COURT
B. Seshasayana Reddy, J.
Smt. R. Sudha Madhuri
Devi — Petitioner
versus
Smt. K. Sudha and
another — Respondents
Crl. Revn. Case No. 1628 of 2003
Decided on 19.12.2003.
Counsel for the Parties:
For the Petitioner: E. V. Bhagirath Rao.
For the Respondent 1: K. Suryanarayana.
For the Respondent 2: Public Prosecutor.
IMPORTANT POINT
Where a cheque is given towards capital to the retiring partner and is dishonoured, continuing partners are liable under Section 138 of the Negotiable Instruments Act depending on terms of the retirement deed.
Headnote:Negotiable Instruments Act, 1881—Sections 138 and 141—Partnership firm—4 partners—Two retiring and two continuing—Continuing partners giving three cheques towards capital of retiring partners—Two cheques honoured, one cheque dishonoured—Notice of demand served—Whether continuing partners are liable under Section 138 with the help of Section 141? (Yes)—Case law discussed.
Held, Of the three cheques referred to above, two cheques were honoured whereas the third cheque was dishonoured which necessitated the complainant to file the complaint. The averments in the complaint and the terms and conditions of the retirement deed, prima facie establish that the cheque in question has been issued with the consent of the petitioner (A3) to the 1st respondent (complainant).
Sub-section (2) of Section 141 makes it clear that, if it is proved that the offence had been committed with the consent or connivance of any person, he shall also be liable for punishment under Section 138 of Negotiable Instruments Act. The material brought on record, prima facie establishes that the cheque in question has been issued to the 1st respondent with the consent of the present petitioner (A3). It is now well settled that all the ingredients of the offence need not be stated in the complaint itself. The Supreme Court in Rajesh Bajaj v. State of NCT of Delhi, 1999 (2) Supreme 442, has held that it is not necessary that a complaint should reproduce verbatim all the ingredients of the offence.
(Paras 12 & 13)
This Criminal Revision Case is directed against the Order dated 10.9.2003 passed in Crl. M.P. No. 5968 of 2003 in C.C. No. 1172 of 2001 on the file of XVII Metropolitan Magistrate, Hyderabad.
2. The complainant was one of the partners in a partnership firm by name M/s Sriven Incorporation. The petitioner herein, her husband Rangaraju Satish Kumar and one Smt. R. Sobha are the other partners. The complainant retired from the partnership firm and a retirement deed came to be executed on 6.6.2001. In nutshell, there were four partners viz. Rangaraju Satish Kumar (A-2), Smt. R. Sudha Madhuri Devi (petitioner herein-A3), Smt. R. Sobha and Smt. Kotamgari Sudha. Out of four, two of them (K. Sudha and R. Sobha) retired from the partnership firm and a deed of retirement came to be executed on 6.6.2001. The retiring partners were paid certain amounts by way of cheques towards their capital balance. After retirement of two partners, the partnership firm came to be reconstituted with the other two partners who are the petitioner and her husband. The shares in the profit and loss have been readjusted between her and her husband in the ratio of 90: 10. The complainant presented cheques for encashment. Of the cheques presented by him, a cheque bearing No. 755702 for Rs. 2,27,790.34 came to be dishonoured. Consequently the complainant issued a statutory notice to the firm and petitioner’s husband (A2) and filed the complaint before the XVII Metropolitan Magistrate. Hyderabad. The learned Magistrate took the complaint on file as C.C. 1172 of 2001 and issued process. The petitioner herein who is A3 in C.C. 1172 of 2001 entered appearance and filed CMP No. 5968 of 2003 seeking dismissal of the complaint in view of the Judgment of this Court in Mukesh Gupta v. Kabsons Gas Equipment Ltd.1 The learned Magistrate on hearing counsel for both the parties dismissed the application by Order dated 10.9.2003. Feeling aggrieved by the Order. Smt. Sudha Maduri Devi, (A3) has filed this Criminal Revision Case.
3. Learned counsel appearing for the petitioner submits that the acquisitions and allegations made in the complaint filed by R1 against the petitioner are vague and there are no specific allegations/acquisitions as such made against the petitioner. It is the submission of the learned counsel for the petitioner that the acquisitions/allegations made in the complaint must be clear, unambiguous and specific against each of the accused and such allegations must reveal that each of the accused was incharge of and was responsible to the partnership firm for the conduct of its business at the material time when the offence was committed by the partnership firm. It is also submitted by him that there is no averment in the complaint that the cheque in question has been issued with the consent of the petitioner and that mere repeating the words mentioned in Section 141 of Negotiable Instruments Act would not be sufficient and that there must be something more clearly stated in the complaint to make the petitioner liable for the offence under Section 138 of Negotiable Instruments Act. He placed reliance on the following decisions.
1. B. Lakshmi v. M/s Trishul Coal Services and Transporters, 1997(4) Crimes 157.
2.P. Ravinder Reddy v. M/s NCC Finance Ltd.2
3.Neeta Bhalla v. S.M.S. Pharmaceuticals Ltd. Hyderabad3
4.In B. Lakshmi’s case 1997(4) Crimes 157 (AP) it has been held that every person who was incharge and responsible for affairs and conduct of business of Company or firm at the time of alleged offence was committed would be liable.
5. In P. Ravinder Reddy’s case, 1998 (1) Andh LT (Cri) 426, it has been held that in the absence of the allegations in the complaint that accused were also incharge and responsible for the business of the 1st accused company, the criminal proceedings initiated against them, definitely amount to abuse of process of the Court and as such, the criminal proceedings are liable to be quashed.
6. In Neeta Bhalla’s case it has been h
