1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPLICATION NO.5601 OF 2009 Mr.Ramesh Seth : Applicant (Orig.Accused No.3) V/s. State of Maharashtra & Anr. : Respondents .... Mr.Milan Desai i/b. Mr.Prashant Parsurampuria for the applicant. Mr.A.S.Shitole, Addl. Public Prosecutor for the State. .... CORAM : S.C.DHARMADHIKARI, J. DATE : JANUARY 11, 2010. P.C.: This is an application seeking setting aside of an order passed by the learned Ad-Hoc Addl. Sessions Judge, Sewree, Mumbai, dated 18.6.2009 rejecting the application for condoning the delay in filing the Revision Application challenging the order of issuing process. 2. Although this order is impugned, the learned counsel appearing for the applicant urges that in this case, there is no case made out, as far as the present applicant is concerned, for issuance of process. This is a case where the applicant is arraigned as accused no.3 only on the basis of being a partner of M/s.S.P. Builders. However, the complaint does not 2 indicate as to how the applicant has any connection with the transaction in question, how the liability is of the firm and when the cheque is issued by the original accused no.2, then what is the occasion to arraign the applicant as an accused. Reliance has been placed on section 141 of the Negotiable Instruments Act, 1881 as amended and a decision of this Court in Bipin J. Shah v. Niru B. Mehta (Smt.) & anr. (2001 (5) Bom.C.R. 574). 3. At the outset, there is no reason to interfere with the order refusing to condone the delay of 827 days in filing the revision application. The discretion is exercised in consonance with the principles of fairness and equity and finding that the explanation does not inspire confidence, the learned Judge in his discretion has refused to condone the delay. That discretion is not exercised arbitrarily, capriciously and so also does not result in mis-carriage of justice. The order to that extent is, therefore, maintained. 4. Coming to the main contention that the order issuing process is vitiated because no prima facie case is made out against the applicant is concerned, the law is very clear. The complaint would have to be read as a whole. The applicant’s counsel would like to read only paragraphs 1 & 2 of the complaint to arrive at a conclusion that no prima facie case is 3 made out. From a reading of the complaint, prima facie, it is clear that the complainant based his case of alleged commission of offences under the Negotiable Instruments Act by alleging that he is a registered member of the Estate Association of India. Original accused nos.2 & 3 approached him and his services as Estate Agent has been engaged by the firm. The firm is made an accused and so also the partners by stating that they are in-charge of the day-to-day affairs of the firm. It is clear from such averments and the reading of the complaint as a whole that prima facie, the ingredients of section 141 are satisfied. However, whether the applicant is liable to be punished for the alleged offence committed or what shall be the ultimate order are matters which must be gone into at the trial. It is not possible to assume as suggested by the learned Advocate that it is only the act of the other accused which could be said to be punishable. The application is, therefore, misconceived and is liable to be dismissed. 5. The reliance placed upon the order of this Court in Shah’s case (supra) is misplaced. Therein, the Court found that the allegation that the accused having committed offences under section 138 of the Negotiable Instruments Act read with sections 420 and 114 of the Indian Penal Code were made against one Ashok Mehta and Bipin Shah. The case of the complainant herself was that she and her husband had handed over certain 4 amount to accused no.1 Ashok Mehta. Although both the accused are known to her husband and herself, the cheque was given by accused no.1. This is not a case where the partnership firm has been proceeded only on the basis that not only the firm, but the partners are liable because each of them is in day-to-day charge and responsible for the affairs of the firm. The decision and the ultimate conclusion therein are distinguishable on facts. 6. Accordingly, Criminal Application is dismissed. However, the trial Court shall not be influenced by any observations made as they are at the state of issuance of process only to uphold an order in that behalf. (S.C. DHARMADHIKARI, J.)