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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
J.B. Pardiwala, J.
Oanali Ismailji Sadikot - Appellants
Vs.
State of Gujarat and Ors. Respondent
Special Criminal Application (Quashing) No. 4536 of 2015
Decided On: 03.03.2016
(B) Negotiable Instruments Act, 1881—Sections 138 and 141—Dishonour of cheque—Offence by Partnership Firm—For maintaining prosecution against Director under Section 141 of Negotiable Instruments Act, arraigning of a company as an accused is imperative—In view of explanation to Section 141 of Negotiable Instruments Act, this legal position needs to be automatically made applicable in case of prosecution against a partnership firm also—For maintaining prosecution against a partner under Section 141 of Negotiable Instruments Act, arraigning of partnership firm as an accused is imperative—Prosecution launched against only one of partners of partnership firm, without joining partnership firm, cannot be maintainable. (Paras 30 and 34)
(C) Criminal Procedure Code, 1973—Section 319—Negotiable Instruments Act, 1881—Sections 138 and 141—Summoning of additional accused to face trial—Offence of dishonour of cheque—Offence by Partnership Firm—When complaint itself is not maintainable in absence of partnership firm being a legal entity before Court and cognizance and issue of process against partners alone is illegal, then there is no question of invoking Section 319 of Cr.P.C. in such a situation—Section 319 of Cr.P.C. would not save situation and is actually not meant to take care of such a serious infirmity in complaint—If initial action is not in consonance with law, all subsequent and consequential proceedings would fall through for reason that illegality strikes at root of order—In such a fact situation, legal maxim sublato fundamento cadit opus meaning thereby that foundation being removed, structure/work falls, comes into play and applies on all scores in present case—Application under Section 319 of the Cr.P.C. is not maintainable and Court below rightly rejected the same. (Paras 49 to 52 and 76)
(D) Criminal Procedure Code, 1973—Section 319—Negotiable Instruments Act, 1881—Sections 138 and 141—Summoning of additional accused to face trial—Offence of dishonour of cheque—Offence by Partnership Firm—Application under Section 319 of Cr.P.C. seeking impleadment of partnership firm as an accused is more in nature of a substantive amendment—There is no provision in Code of Criminal Procedure giving right to parties to file application for amendment in pleadings and give power to lower Courts to allow the same. (Para 56)
(E) Statute Law—Legal Fiction—It is bounden duty of court to ascertain for what purpose legal fiction has been created—It is also duty of Court to imagine fiction with all real consequences and instances unless prohibited from doing so—Use of term deemed has to be read in its context and further fullest logical purpose and import are to be understood—In modern legislation, term deemed has been used for manifold purposes—By virtue of a legal fiction, it cannot be said that on the date of filing of complaint, Court was justified in taking cognizance and issue process against the partners in absence of legal entity and no fault could be found so far as legality and validity of cognizance is concerned—Legal fiction is altogether for a different purpose and it should not be brought in aid of curing a serious defect or infirmity in complaint or order taking cognizance. (Paras 71 and 72)
Result—Special Criminal Application dismissed.
J.B. Pardiwala, J.
1. By this writ application under Article 227 of the Constitution of India, the applicant - original complainant has prayed for the following reliefs:
"16(A) Your Lordships may be pleased to allow the present petition.
(B) Your Lordships may be pleased to issue a writ of certiorari or writ in nature of certiorari or any other appropriate writ, direction or order quashing and setting aside the order dt. 15.4.15 passed by the Ld. Additional Chief Judicial Magistrate, Gonal below Exhibit 53 i.e. the application preferred u/s. 319 of the Code of Criminal Procedure in Criminal Case No. 222/2004; and further be pleased to allow the application at Exhibit 53 preferred in Criminal Case No. 222/2004 by permitting the petitioner to show the name of Swastik Construction Company by mentioning separate serial number in the complaint at Exhibit No. 1.
(C) Any other and further relief/s as may be deemed just, fit and proper in the facts and circumstances of the present case may kindly be granted in the interest of justice."
2. The facts of this case may be summarized as under:
"2.1 The applicant herein filed a complaint being Criminal Case No. 222 of 2004 in the Court of the Additional Chief Judicial Magistrate, Gondal, against the respondent No. 2 herein for the offence punishable under Section 138 of the Negotiable Instruments Act.
2.2 As is evident on perusal of the complaint itself, which is at page - 11, Annexure: 'A' to this petition, that six individuals have been arraigned as accused being partners of a partnership firm running in the name of 'Swastik Construction'. The partnership firm, as a legal entity or juristic person, has not been arraigned as an accused.
2.3 The learned Chief Judicial Magistrate took cognizance upon the said complaint and ordered issue of process against all the six partners named as accused in the complaint.
2.4 It appears that the respondents herein and other co-accused preferred the Criminal Miscellaneous Application No. 5043 of 2014 for quashing of the proceedings of the Criminal Case No. 222 of 2004 principally on the ground that in the absence of a legal entity, they, in their capacity as partners, cannot be prosecuted for the offence punishable under Section 138 of the Act. To put it in other words, the Court could not have taken cognizance upon the complaint and ordered issue of process against the partners in the absence of the legal entity i.e. the partnership firm before the Court.
2.5 On 16th April, 2014, the following order was passed by a learned Single Judge in the application filed for quashing of the proceedings referred to above.
"Considering the submission that the partnership firm has not been joined in the complaint under Section 138 of the Negotiable Instruments Act, 1881, Rule. To be heard with Criminal Misc. Application No. 2356 of 2014. Ad-interim relief in terms of Paragraph-9(C). Learned APP waives service.
Direct Service for rest is permitted."
2.6 It appears that during the pendency of the above referred application, the Criminal Miscellaneous Application (for modification of order) No. 10036 of 2014 came to be filed. The said application was disposed of by the learned Single Judge as under:
"1. Heard learned advocates appearing for the parties.
2. Learned advocate for the applicant has relied upon the decision rendered by the Hon'ble Supreme Court in the case of Hardeepsinh v. State of Punjab, reported in 2014 (1) Scale 241.
3. Considering the above aspect, the application is allowed. It would be open for the applicant to file an application under Section 319 of the Criminal Procedure Code before the Trial Court.
4. The Trial Court shall decide such application on its own merits. It is further directed that the Trial Court shall not proceed further with the case without passing of further orders in the main matter. 5. With the above observations, present application stands disposed of. Rule made absolute. Direct service is permitted."
2.7 On the strength of the order pa
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