vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION WRIT PETITION NO.1147 OF 1999 WRIT PETITION NO.1147 OF 1999 WRIT PETITION NO.1147 OF 1999 M/s.Kirtane & Pandit Chartered Accountants ... Petitioner V/s. Sunderlal Balaji Pate & Ors. ... Respondents Mr.A.P. Mundargi i/b Ganesh Gole for Petitioner Mr.D.P. Adsule, APP, for Respondent-State CORAM: SMT.NISHITA SMT.NISHITA SMT.NISHITA MHATRE, J. MHATRE, J. MHATRE, J. DATED: APRIL 2, 2008 APRIL 2, 2008 APRIL 2, 2008 ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: . This writ petition challenges the issuance of process against the petitioner i.e the accused No.5. The petitioner is a firm of chartered accountants. Respondent No.1 is the complainant and Respondent Nos.2 to 5 are the original accused Nos.1 to 4 in regular criminal case no.120/93 filed the court of the JMFC, Pune under sections 420, 409 r/w 34 of the Indian Penal Code. The complainant, i.e. Respondent No.1, and Respondent Nos.2 to 5 are the Directors of a private limited company which was set up in Pune. The Petitioner firm was engaged as the chartered accounts for the private limited company. The petitioner firm was required to draft the articles of association. It appears that some time later, after the company was set up, differences and disputes arose amongst the Directors : 2 : due to which the complainant Respondent No.1 was removed as a Director. The complainant had filed Regular Civil Suit No.860 of 1988 which was dismissed on 14.8.1998, for default. A Miscellaneous application No.714 of 1998 was then preferred by the complainant for restoring the suit. This application was dismissed on 20.9.1999. Therefore, the order dismissing the civil suit has attained finality and the complainant is no longer a Director of the company. 2. Thereafter, on 3.3.1989, the complainant lodged a complaint against Respondent Nos.2 to 5 and the petitioner. However, the police did not take any action on the complaint being. The complainant therefore filed a complaint being C.C. No.120 of 1993 under sections 420, 409 r/w section 34 of the Indian Penal Code. The learned Magistrate directed an enquiry u/s 156(3) of the Code of Criminal Procedure. The police submitted its report on 8.6.1992 that there was no offence committed by the accused. However, the learned Magistrate issued process in exercise of his powers u/s 156 of the Code on 24.12.1993. The petitioner applied before the learned Magistrate for recalling the process on 12.8.1996. This application was rejected by the learned Magistrate on 18.11.1998. Criminal revision applications were preferred by the petitioner as well as the other accused. Both the criminal revision applications were : 3 : heard together by the learned 9th Additional Sessions Judge and were dismissed. Hence, the present petition. 3. Mr.Mundargi, learned counsel appearing for the petitioner, submits that the complaint does not in any manner show the participation of the petitioner in any offence. He submits that the firm cannot be held vicariously liable for any offences and it was necessary for the complainant to mention the name of the person who was responsible for the alleged offences. The learned counsel draws my attention to the fact that the complaint does not disclose any offence committed by the petitioner which would tantamount to an offence u/s 409 and 420 r/w 34 of the IPC. He submits that all that the complaint reveals is that the petitioner firm was engaged as the chartered accounts of the company of which the complainant was one of the Directors, till he was removed. The complaint also mentions that the firm was engaged for the purposes of drawing up necessary documents when the Company was being established, including the articles of association. The learned counsel therefore, submits that the process issued against the petitioner must be quashed and set aside and the judgments of the learned Magistrate as well as the Sessions Judge need to be set aside. 4. Respondent NO.1, complainant, though served is : 4 : not present. I have perused a copy of the complaint with the assistance of the learned counsel for the petitioner. Besides stating that the petitioner firm was entrusted with the work of formation of M/s.Torr Vaccum Products Limited and the drafting of the memorandum of association and articles of association for that company, there is no other involvement of the petitioner firm. There are stray sentences in the complaint that accused Nos.1 to 5 in pursuance of their common interest have cheated the complainant and that the complainant has realised that accused No.1 had misappropriated the industrial plot NO.71 alongwith its building, drawing, parts, manufacturing money of the complainant. The next allegation is that accused No.1 to 5 have fabricated false documents and shares by forging the seal of the company. It is then mentioned that in furtherance of their common intention that the accused withdrew money on behalf of the company and misappropriated it and cheated the complainant. It is on the basis of these allegations that process was issued to the petitioner. In my opinion, not one of these averments would constitute an offence under sections 409 and 420 r/w 34 of the Indian Penal Code. There are no details at all as to how the petitioner firm was responsible for any of the offences attributed to them. In my opinion, the issuance of process against the Petitioner was uncalled for. The Sessions Court : 5 : while dealing with the application for recall of the process has not considered the same in its proper perspective. The Sessions Court has without reason refused to allow the revision. Merely because a person drafts the articles of association that would not by itself mean that the person has an intention to cheat or defraud the company or its directors. The observation of the Sessions Court that accused No.1 i.e. the petitioner being a firm of chartered accountant is supposed to be an expert and well acquainted with the provisions of the Companies Act and, therefore, had inserted clause 20 in the articles of association which permitted the Managing Director of the company to continue as such, during his lifetime. This may be a wrong interpretation of the Companies Act on the part of the petitioner. At best it may be an advice which was wrongly given. But it would not necessarily lead to the conclusion that such advice was given for the purposes of cheating the complainant. 5. In this view of the matter, Petition is allowed. The judgment of the Sessions Court in Criminal Revision Application No.753 of 1998 dated 14.7.1999 is set aside. The order dated 18.11.1998 passed by the JMFC, Pune in Criminal Case NO.120 of 1993 and the process issued on 21.12.1993 against the Petitioner are also quashed and set aside. : 6 : 6. Rule made absolute accordingly.