The Himachal Pradesh High Court allowed a writ petition, praying to quash the complaint no. 104 of 2018, titled Girija Nand vs. Reeta Devi & others, pending before the learned Judicial Magistrate First Class.
The Court observed that there is no averment in the present petition that the contract provided for the dissolution of the firm or that there was consent of all the partners to dissolve the firm.
Brief Facts:
Respondent No.1 (complainant before the learned Trial Court) filed a complaint against the petitioner and another person for the commission of an offence punishable under Section 138 of the Negotiable Instruments Act. The learned Trial Court took cognizance of the complaint and issued notice to the petitioner. No cause of action arose for respondent No.1/complainant to file the complaint against the present petitioner. The present petitioner never purchased any commodities from the respondent. The petitioner had entered into a Partnership Deed on 12.10.2015 but she had not worked with respondent no.2. She left the business in the year 2016, much before the transaction forming the consideration of cheques.
Contentions of the Petitioner:
The Learned Counsel for the Petitioner submitted that respondent no.1/complainant filed a false complaint. There is no involvement of the petitioner and she was falsely implicated. Rakhi Enterprises is a partnership firm but it was not impleaded as a party. The firm is to be treated as a Company and there is no averment that the petitioner was in charge and responsible to the Company for its affairs in the absence of which the petitioner is not liable.
Contentions of the Respondent:
The Learned Counsel for the Respondent submitted that the Learned Trial Court had rightly summoned the petitioner and proforma respondent No.2 and the other persons. The cheque was issued in discharge of her legal liability; however, it was dishonored on its presentation. Therefore, the petitioner is liable for the commission of an offence punishable under Section 138 of the Negotiable Instruments Act.
The Court noted that power under Section 482 of Cr.P.C. can be exercised to prevent the abuse of the process or secure the ends of justice. The Court can quash the complaint/F.I.R. if the allegations do not constitute an offence or make out a case against the accused. However, it is not permissible for it to conduct a mini-trial to arrive at such findings.
The Court observed that there is no averment in the present petition that the contract provided for the dissolution of the firm or that there was consent of all the partners to dissolve the firm. Formation of a different partnership by one member of the firm with other persons does not lead to the dissolution of the firm. Thus, the plea that the petitioner was not a partner on the date of issuance of the cheque is not acceptable.
The Court said that it is not permissible to prosecute the petitioner and the complainant in the absence of the Firm cannot proceed against the petitioner.
The decision of the Court:
The Himachal Pradesh High Court, allowing the petition, held that no useful purpose would be served by continuing the prosecution as the same would not result in the conviction of the petitioner in the absence of the Firm.
Case Title: Reeta Devi v Girija Nand & Anr.
Coram: Hon’ble Justice Rakesh Kainthla
Case no.: Cr. MMO No. 214 of 2019
Advocate for the Petitioner: Mr. Inderjit Singh Narwal
Advocate for the Respondents: Mr. H. S. Rangra
Read Judgment @LatestLaws.com
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