Honble VERMA, J.–In the present Criminal Misc. Petition the only point involved is whether the petitioners Draupadi Devi @ Smt. Maya Sippi widow of late Vijay Sippi and Shri Vishal Jadeja S/o Prarram, earlier husband of Smt. Draupadi Devi, can be held criminally liable for the alleged criminal action of Shri Vijay Sippi or the firm M/s. Sippi Films, when admittedly said two petitioners are neither partners of the firm M/s. Sippi Films, nor were falling under any of the necessary ingredients of Sec. 138 and 141 of the Negotiable Instruments Act (herein after referred to `the Act), but still on the complaint filed by respondent No.2 Sunil Mittal, Director of Mittal Capital India Ltd., the cognizance had been taken against the two petitioners as well for the dishounour of the cheque issued by late Vijay Sippi on behalf of M/s. Sippi Films in favour of the M/s. Mittal Capital India Ltd., for an amount of Rs. 5 lacs; the cheque number is 256154 dated 31.3.97. At the time when the cheque was issued there were only two partners of M/s. Sippi films namely Mr. Vijay Sippi and his mother Mrs. Mohini G. Sippi.

(2). Mr. Vijay Sippi died on 17.4.1998.

(3). The cheque in question was presented to bankers after the death of said Mr. Vijay Sippi, that is, in August, 1998, to the Bank Oriental Bank of Commerce, Ajmer. The complainant was informed on 15.9.98 that the cheque cannot be encashed for the reason that money has not been arranged for. On 24.9.98, the notice was sent to petitioners, copy of which is attached with the petition as annexure-2. On 31.10.98, the petitioners replied to the notice saying that they were neither the signatories to the cheque, nor partners in the firm M/s. Sippi Films, and therefore, no liability could be foisted on the petitioners only because of the reason that the petitioner No.1 happened to be a wife and the petitioner No.2 a step son of the signatory of the cheque.

(4). The complaint was filed under Sec. 138 and 141 of the Act. The statement of complainant Mr. Sunil Mittal was also recorded. The cognizance was taken by the learned Judicial Magistrate No.1, Ajmer vide order dated 11.11.98. The petitioners moved an application for recalling of the cognizance order, which was dismissed vide order dated 2.4.99. The petitioners filed a revision petition before the Revisional Court i.e. Sessions Judge Ajmer, which was also dismissed on 17.8.99. Hence the present petition under Section 482 Cr.P.C. for quashing of the proceedings against the petitioners has been preferred.

(5). The Registrar of firms had also produced a certificate annexure-5, now attached with the petition, which was a document furnished by the Bank before the Sessions Judge as well proving that Smt. Draupadi Devi was never a partner of the firm M/s. Sippi Films and so was the case in regard to Vishal Jadeja. It is settled law that under the Partnership Act no one can be inducted as partner without the consent of all the partners and none of the petitioners had been formerly inducted as partners, which fact is not denied even by the respondent-complainant. As regards to Vishal Jadeja, he is being involved in the instant case only because of the reason that once on 4.1.95, about two years before issuance of the bounced cheque, this Vishal Jadeja step son of Vijay Sippi had been given a authorisation letter by Mr. Vijay Sippi to operate the account in question for some time. But it is not disputed that this Vishal Jadeja was never `incharge or `responsible for the conduct of the firm. Therefore, once the authorisation letter had been given to Mr. Vishal Jadeja, about three years before the cause of action had arisen, can it be said that he can be liable for criminal action of a dead partner of the firm, only for the reason that three years back he was holding the authority letter on behalf of one of the dead partner to operate the same account.

(6). Obviously, it is unknown to the law that legal heirs of the accused are to face the trial for the alleged

Click Here to Read the rest of this document