1 crirapln194-08 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL REVISION APPLICATION NO. 194 OF 2008 1] Abhay S/o Shantilal Kankariya Age-40 year, Occ-Business R/o Ganj Bazar, Ahmednagar .. APPLICANT [ORIG.COMPLAINANT] Vs 1] M/s Sarda Clothe Stores Through its Partner, Shri Laxminiwas S/o Zumbarlal Sarda Age Major, Occ-Business, Sarda Lane, Ahmednagar ...RESPONDENT ... Shri Ajit M.Gholap, Adv.for applicant. Shri A.S.Bajaj,Adv. for Respondent. ... CORAM : T.V.NALAWADE,J. DATE : 29/08/2011 ORAL JUDGMENT: 1] Rule. Rule returnable forthwith. Application is heard finally with consent of parties. 2] The Revision application is filed against the order made by 2 crirapln194-08 Sessions Court, Ahmednagar in Criminal Revision Application No. 157/07. By decision dated 30/4/08, the Sessions Court has set aside the order of Issue Process made by J.M.F.C. Ahmednagar in S.T.C.No.2811/07. 3] The applicant has filed private complaint for offence under Section 138 of Negotiable Instruments Act against respondent. It is the contention of the applicant that he had given amount of Rs. 7,90,000/- by way of deposit to the respondent and receipt in respect of deposit was given by respondent to the applicant. The respondent also agreed to pay interest at the rate of 12% p.a. and when the amount of deposit was demanded back, two cheques were given by respondent to applicant. These cheques bounced. Statutory notice came to be given. No reply was given to the statutory notice and then private complaint came to be filed. Affidavit came to be filed in support of the allegations made in the complaint and relevant record was produced. J.M.F.C. issued process on the basis of this material. 4] It is the case of respondent who is a partner of M/s Sarda Clothe Stores that the exact role played by him in the management of the business of the clothes store is not mentioned in the complaint and other contentions are also vague. It is his case that as per Section 141 of N.I. Act, cognizance of the offence cannot be taken against him. On the basis of few reported cases, Sessions Court set aside 3 crirapln194-08 the order. 5] A copy of complaint is produced and shows that Laxminiwas Zumbarlal Sarda is made accused as a partner of Sarda clothes Stores. His name is mentioned as a person who handed over the cheque. The copy of statutory notice is produced and it shows that it was given to Laxminiwas Zumbarlal Sarda as partner of Sarda Clothes Stores. It was submitted for the complainant that the cheque was signed by Laxminiwas Sarda and the aforesaid contents of complaint are sufficient to infer that there was such contention of the complainant. At the time of issue of process, prima facie case is required to be made out by the complainant and this Court has no hesitation to hold that the contentions made in the complaint and the material mentioned in the complaint were sufficient for J.M.F.C. to pass the order of issue of process. 6] It appears that on the basis of few observations made by Apex Court in some reported cases, Sessions Court felt that in the present case also it was necessary for the complainant to show that the accused Laxminiwas Sarda was responsible for the conduct of the business of the firm. In the case reported as 2008 (1) M.L.J. [Cri] 215 [N.K.Wahi V/s Shekhar Singh and others] , the Apex Court was discussing the facts of the case in which a Director was made accused. It is observed that merely because the accused is a Director 4 crirapln194-08 of a Company, it cannot be inferred that he was incharge and was responsible to the company for the conduct of the business. Similar observations are made in the case reported as 2005 [4] M.L.J. 731 [S.C.] between S.M.S. Pharmaceuticals Ltd. V/s Neeta Bhalla and Another. There is no dispute over propositions made in these cases, but they are in respect of Director of Company. The relevant facts of the present case are already mentioned. 7] Two more cases reported as 2006 [5] M.L.J. 705 [Bombay High Court ] between D.P.Jain and Co. and others V/s Green Earth Asphalt and Power Pvt. Ltd. and 2006 [4] M.L.J. 369 [Bombay High Court ] between Suman Madanlal Bora V/s State of Maha and others] were cited. In those cases also, in view of the facts of those cases, the High Court observed that it was necessary to show that the accused was incharge and responsible to the conduct of business of the firm. In view of the facts of those cases, the observations were made. It is already observed that the complaint is filed against the respondent from the present proceedings though he is mentioned as a partner of the clothes stores. It will be matter of evidence as to in whose name the account was opened and as to who issued the cheque, though it was submitted for the petitioner that the cheque is signed by the respondent. The point regarding verification was not argued by both the sides in view of the decision of this Court reported as 2011 All M.R. [Cri] 64 between Mr.Rajesh Bhalchandra 5 crirapln194-08 Chalke V/s State of Maha. and others. 8] In view of these circumstances, this Court has no hesitation to observe that the Sessions Court has committed error in setting aside the order of issue process. This order cannot sustain in law and so, the revision is allowed. Rule is made absolute. The judgment and order of Sessions Court Ahmednagar in Criminal Revision Application No.157/07 dated 30/4/08, is set aside. The observations made in this proceeding will not come in the way of trial Court while deciding the matter. [T.V.NALAWADE,J.] umg/crirapln194-08