THE HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL PETITION Nos.7964 and 8377 OF 2013
COMMON ORDER:
1.
Criminal Petition No.7964 of 2013 is filed by A-3 and Criminal Petition No.8377 of 2013 is filed by A-4 in CC No.33 of 2013. Since both the petitioners are accused in the same complaint, these petitions are disposed off by way of this Common Order.
2. For the sake of convenience, the parties hereinafter will be referred to as arrayed in the CC. The case of the complainant /M/s.Creative Electronics is that A1 approached the complainant for supply of cash counting machines on credit basis. The accused promised to pay the complainant interest at 25% if goods are given on credit. Accordingly, complainant delivered cash counting machines to the accused when order was placed and the cheque in question bearing No.254971, dated 07.01.2009 was issued for Rs.80,60,546/- towards payment of outstanding. The said cheque when presented for clearance was returned with endorsement "payment stopped by the drawer". Since the cheque was returned unpaid and after 2 service of notice, as the amount covered by the cheque was not paid, present complaint is filed and same was taken on file against A1 and seven other Directors.
3. Learned counsel for the petitioners/accused submits that the complainant has not filed any documents before the Court to show that it was a partnership firm which was registered under Section 69(a) of the Indian Partnership Act. In the absence of any such partnership in accordance with the Partnership Act, the company cannot maintain a complaint. In support of his contention, he relied on the judgment of this Court in Amit Desai v. Shine Enterprises in Criminal Petition No.5313 of 1998 dated 09.02.2000.
4. As seen from the complaint, the complainant has described itself as a partnership firm in the name of M/s.Creative Electronics. The list of documents does not contain any partnership deed of the complainant.
5. In the said complaint, except stating that the petitioner/A4 in Crl.Petition No.8377 of 2013 is also responsible for the day to day affairs, it is not averred in the complaint as to how A4 was 3 responsible in dealing with the complainant company in procuring money counting machines. It is not specifically mentioned in the complaint that this petitioner at any point of time interacted with any of the personnel of the complainant firm while transacting business for purchase of money counting machines. In the said circumstances, when no specific averments are made as to how this petitioner/A4 was responsible for the transactions in between the complainant and the accused company, prosecution cannot be maintained against this petitioner.
6. Accordingly, the proceedings in CC No.33 of 2013 on the file of XXIV Special Magistrate Erramanzil, Hyderabad is liable to be quashed against A-4 and accordingly quashed.
5. It is alleged in the complaint that petitioner/A3 in Crl.Petition No.7964 of 2013 is signatory to the said cheque. For the said reason, the proceedings cannot be quashed against this petitioner. However the ground taken by the petitioner is that the complainant firm is not a registered firm in accordance with Section 69(2) of the Partnership Act and no complaint can be maintained.
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6. Learned Magistrate is directed to consider the application made by the petitioner/A3 seeking discharge on the ground of the complainant not being a partnership firm. The Hon'ble Supreme Court in the case of Bhushan Kumar v. State (NCT of Delhi) in Criminal Appeal No.612 of 2012, dated 04.04.2012, wherein the Hon'ble Supreme Court held as follows:
"17. It is inherent in Section 251 of the Code that when an accused appears before the trial Court pursuant to summons issued under Section 204 of the Code in a summons trial case, it is the bounden duty of the trial Court to carefully go through the allegations made in the charge sheet or complaint and consider the evidence to come to a conclusion whether or not, commission of any offence is disclosed and if the answer is in the affirmative, the Magistrate shall explain the substance of the accusation to the accused and ask him whether he pleads guilty otherwise, he is bound to discharge the accused as per Section 239 of the Code."
7. The learned Magistrate trying the case shall initially decide on the issue whether the complainant firm is partnership firm or not at the time of filing complaint by giving an opportunity to Complainant. In the event of complainant not being a partnership firm, the learned Magistrate shall discharge the accused, following the dictum in Amit Desai v. Shine Enterprises.
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8. In the result, Criminal Petition No.7964 of 2013 is disposed off and Criminal Petition No.8377 of 2013 is allowed.
_________________ K.SURENDER, J Date:08.09.2022 kvs 6 THE HON'BLE SRI JUSTICE K.SURENDER CRIMINAL PETITION Nos.7964 and 8377 OF 2009 Dated:08.09.2022 kvs