Back
2004(6) Supreme 37
SUPREME COURT OF INDIA
(From Gujarat High Court)
Y.K. Sabharwal and D.M. Dharmadhikari, JJ.
Monaben Ketanbhai Shah & Anr. -Appellants
versus
State of Gujarat & Ors. -Respondents
Criminal Appeal No. 850 of 2004
(Arising out of SLP (Crl.) No. 1269 of 2004)
Decided on 10-8-2004
Counsel for the Parties :
For the Appellants : Uday U. Lalit, Sr. Advocate, Gautam Joshi, Rajesh Dave, Prashant Kumar, Abhijat P. Medh, Rohan Thavani, Advocates.
For the Respondent No. 2 : R.P. Bhatt, Sr. Advocate, C.M. Shroff, Girish M.S., M.N. Shroff, Advocates.
For the Respondent No. 1 : Mr. Hemantika Wahi, Advocate.
Held : It is evident that in the complaint there are no averments against the appellants except stating in the title that they are partners of the firm. Learned counsel for the respondents/complainant contended that a copy of the partnership deed was also filed which would show that the appellants were active in the business. No such document was filed with the complaint or made part thereof. The filing of the partnership deed later is of no consequence for determining the point in issue. Section 141 does not make all partners liable for the offence. The criminal liability has been fastened on those who, at the time of the commission of the offence, was in charge of and was responsible to the firm for the conduct of the business of the firm. These may be sleeping partners who are not required to take any part in the business of the firm; they may be ladies and others who may not know anything about the business of the firm. The primary responsibility is on the complainant to make necessary averments in the complaint so as to make the accused vicariously liable. For fastening the criminal liability, there is no presumption that every partner knows about the transaction. The obligation of the appellants to prove that at the time the offence was committed they were not in charge of and were not responsible to the firm for the conduct of the business of the firm, would arise only when first the complainant makes necessary averments in the complaint and establishes that fact. The present case is of total absence of requisite averments in the complaint. (Para 6)
JUDGMENT
Y.K. Sabharwal, J.-Leave granted.
2. The second respondent has filed a complaint against five accused under Section 138 of the Negotiable Instruments Act, 1881 (for short, "the Act") alleging dishonour of a cheque, the accused having stopped payment thereof. Out of five, three accused are ladies. On an application filed by the said accused, inter alia, alleging that the complaint does not fulfill the ingredients of Section 141 of the Act, the Magistrate directed their discharge holding that there are no allegations in the complaint, making out an offence against them. The order of the Magistrate was, however, set aside by the Sessions Judge. The learned Sessions Judge held that `no doubt, it is not specifically mentioned in the complaint that all the accused were in-charge of the business but merely non-mentioning of specific words does not mean that they were not in-charge of the business and in this view came to the conclusion that it was for the accused to establish that they had no knowledge about the transaction or had exercised due diligence. The High Court, by the impugned judgment, has upheld the order of the Sessions Judge insofar as it concerns the appellants. The order of the Sessions Judge insofar as original accused No. 5 is concerned, has been reversed by the High Court and that of the Magistrate restored since the High Court came to the conclusion that accused No. 5 was a student up to 1998 studying at Ahmedabad, and thereafter she got married and went to USA and in these circumstances her case stood on different footing. The remaining two-sisters are in appeal on grant of special leave.
3. Section 138 of the Act makes dishonour of the cheque an offence punishable with imprisonment or fine or both. Section 141 relates to offences by the company. It provides that if the person committing an offence under Section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. Thus, vicarious liability has been fastened on those who are in-charge of and responsible to the company for the conduct of its business. For the purpose of Section 141, a firm comes within the ambit of a company.
4. It is not necessary to reproduce the language of Section 141 verbatim in the complaint since the complaint is required to be read as a whole. If the substance of the allegations made in the complaint fulfill the requirements of Section 141, the complaint has to proceed and is required to be tried with. It is also true that in construing a complaint a hyper-technical approach should not be adopted so as to quash the same. The laudable object of preventing bouncing of cheques and sustaining the credibility of commercial transactions resulting in enactment of Sections 138 and 141 has to be borne in mind. These provisions create a statutory presumption of dishonesty exposing a person to criminal liability if payment is not made within statutory period even after issue of notice. It is also true that the power of quashing is required to be exercised very sparingly and where, read as a whole, factual foundation for the offence has been laid in the complaint, it should not be quashed. All the same, it is also to be remembered that it is the duty of the Court to discharge the accused if taking everything stated in the complaint as correct and construing the allegations made therein liberally in favour of the complainant, the ingredients of the offence are altogether lacking. The present case falls in this category as would be evident from the facts noticed hereinafter.
5. The High Court in the impugned judgment has held that "on its perusal, it is clear that the respondent No. 2 original complainant has made specific allegations against the accused persons including the present petition
The main legal point established in the judgment is the binding effect of the settlement between the parties, the waiver of the right to seek re-employment by the workmen, and the entitlement of the ....
A lockout is justified if it is declared in response to an illegal strike or a strike that is in breach of a settlement or award.
The combination of eyewitness testimonies, recovery of the weapon used, and forensic examination results can establish guilt in criminal cases, even based on circumstantial evidence.
The conviction of an accused person under Section 27(3) of the Arms Act is not permissible in law if the accused is also charged with committing murder under Section 302 of the Indian Penal Code.
The court can enhance compensation based on the deceased's income and family dependency, and adjust the multiplier used by the Tribunal if found unjustified.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
