CR.MA/7806/2000 1/3 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 7806 of 2000 For Approval and Signature: HONOURABLE MR.JUSTICE ANANT S. DAVE ====================================== HITENDRA @ HITUBHAI NAGINDAS GANDHI Versus STATE OF GUJARAT & another ====================================== Appearance : MR DHIRENDRA MEHTA for Applicant Ms. Falguni Patel, APP, for respondent No.1 MR DR BHATT for Respondent No.2 ====================================== CORAM : HONOURABLE MR.JUSTICE ANANT S. DAVE Date : 01/09/2008 ORAL JUDGMENT 1 This application is filed by the applicant under Section 482 of the Code of Criminal Procedure, 1973 [for short, 'the Code'], for the following relief: “To quash the complaint filed by the respondent No.2, Aniket Enterprises, numbered as Criminal Case No.273 of 1998 qua the applicant pending before the Court of learned Metropolitan Magistrate [Court No.9] and also quash and set aside the summons/process issued by the learned Metropolitan Magistrate in the said proceedings against the applicant, declaring and holding the same to be illegal, unjust, improper, and without jurisdiction.” 2 Respondent No.2 filed the aforesaid complaint under Section 138 of the Negotiable Instruments Act, 1881 [for short, 'the Act], describing the applicant also as an accused in respect of dishonour of cheque No.0362476 dated 19.11.1997 for Rs.2,09,093.07 drawn on Bank of India, Navsari Branch and cheque No.6362477 dated 24.11.1997 for Rs.46,000/- drawn on the Bank of India, Navsari Branch, issued by the CR.MA/7806/2000 2/3 JUDGMENT firm. The present case, thus, involved commission of offence by a firm under Section 138 of the Act. 3 Learned counsel for the applicant has submitted that none of ingredients of Section 138 of the Act is attracted in the present case, in as much as, the applicant was not connected with Om Agency, a partnership firm, nor was he partner of the said firm. He has further submitted that the complaint does not contain necessary averments to connect the applicant as an accused and inherent power under Section 482 of the Code, if not exercised, it will amount to abuse of process of law. 4 Heard Mr. D.R. Bhatt, learned counsel for the complainant and Ms. Falguni Patel, learned Additional Public Prosecutor, for the State. 5 The contention raised by the learned counsel for the applicant that the complaint is devoid of necessary averments, cannot be accepted in as much as in paragraphs 2 and 3, it is specifically averred by the complainant that the applicant is connected with the business of the partnership firm. Whether the applicant herein is a partner or not and whether the deed of partnership, xerox copy of which is produced on record, is genuine or not, can be considered by the concerned Magistrate at the appropriate stage of appreciating evidence after commencement of the trial and the same cannot be gone into by this Court in the present proceeding. In view of the decision of the Apex Court in the case of N. Rangachari vs. Bharat Sanchar Nigam Limited, reported in [2007] 5 SCC 108, the contention raised as a defence can be considered and dealt with by the concerned Magistrate at the appropriate stage of trial. In paragraph 27, it is held by the Apex Court in the case of N. Rangachari [supra] as under: CR.MA/7806/2000 3/3 JUDGMENT “In fact, an advertence to Sections 138 and 141 of the Negotiable Instruments Act shows that on the other elements of an offence under Section 138 being satisfied, the burden is on the Board of Directors or the officers in charge of the affairs of the company to show that they are not liable to be convicted. Any restriction on their power or existence of any special circumstance that makes them not liable is something that is peculiarly within their knowledge and it is for them to establish at the trial such a restriction or to show that at the relevant time they were not in charge of the affairs of the Company. Reading the complaint as a whole, we are satisfied that it is a case where the contentions sought to be raised by the appellant can only be dealt with after the commencement of the trial.” 6 Considering the above, in my view, this is not a fit case for exercise of jurisdiction under Section 482 of the Code for quashing the complaint. 7 In the result, this application is rejected. Rule is discharged. The interim relief stands vacated. 8 R & P, if any, be sent forthwith. (ANANT S. DAVE, J.) (swamy)