Bombay High Court
Prathibha Champalal Jain And Another vs Bhushan Giridhar Patil on 8 May, 2024
2024:BHC-AUG:10394
(1) 901criapln3710.23
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
901 CRIMINAL APPLICATION NO. 3710 OF 2023
PRATHIBHA CHAMPALAL JAIN AND ANOTHER
....Applicants
VERSUS
BHUSHAN GIRIDHAR PATIL
.....Respondent
Mr. C. C. Deshpande, Advocate for the applicants
Mr. P. C. Mayure, Advocate for respondent
CORAM : SANJAY A. DESHMUKH, J.
DATE : 08th MAY, 2024
P. C.
1. This application is filed for quashing of the
complaint bearing SCC No.1084/2021 thereby order of issue
process against the applicants was passed by the court of JMFC,
Dhule under Section 138 of the Negotiable Instruments, Act (for
short 'the N. I. Act').
2. It is averred in the complaint that the applicant and
co-accused are running a partnership firm. They have admitted
their liability to pay an amount of Rs.80 lakhs paid to them in
1 of 8
(2) 901criapln3710.23
respect of land sale transaction. The cheque of Rs.35 lakhs was
issued by Kalpesh Jain who is accused No.1 in favour of
respondent. The cheque was dishonored by cheque return memo
dated 07-04-2021 because of insufficiant funds in his account.
Accordingly it was informed to the respondent by that banker .
The notice was issued to the applicants and other accused i.e. 1
to 4. However, neither did they reply to that notice nor did they
pay that amount. Therefore, the complaint case was filed.
3. Learned JMFC, Dhule after hearing the learned
advocate for the applicants and after perusing the documents,
held that there is prima facie case against the applicants under
Section 138 of the N. I. Act and the order of issue process was
passed.
4. Grounds for quashing said complaint are that cheque
was issued by accused No.1-Kalpesh Jain without knowledge of
the applicants. The applicants have not signed the said cheque
and therefore, they cannot be prosecuted for criminal liability
2 of 8
(3) 901criapln3710.23
punishable under Section 138 of the N.I. Act.
5. Learned advocate for the applicants submits that the
applicants are falsely implicated in the crime. The cheque was
signed by accused No.1 Kalpesh alone. Cheque was not singed
by the other accused i.e. applicants. That cheque was not issued
with their knowledge. He therefore, prayed to quash the
proceeding. He relied upon the judgment in the case of Arpana
A. Shah Vs Sheth Developers Pvt. Ltd. And others reported in
MANU/SC/0598/2013 in which the law is laid down that strict
interpretation is required to be given to penal statutes like
Section 138 of the N. I. Act. In case of issuance of cheque of
joint account, all holders cannot be prosecuted unless the
cheque is signed by each and every person who are joint account
holders. Issuance of process clearly shows that only drawer of
cheque is responsible for the same. The culpability attached to
dishonour of cheque can be in no case 'except in case of section
141 of the N. I. Act' be extended to those on whose behalf
cheque is issued. It is only drawer of cheque who can be made
3 of 8
(4) 901criapln3710.23
accused.
6. Learned advocate for the applicants submits that
there is a partnership between applicants and accused No.1 has
specifically asserted it and it is not denied that those cheques are
issued by accused No.1. Thus all are liable and they shall be
deemed to be liable to pay as per section 141 of the N. I. Act.
Learned advocate for the applicants placed reliance on the
authority of Riya Bawrif Etc Vs Mark Alexander Davidson and
Ors reported in AIR Online 2023 SC 651, in which law is laid
down that a partner was retired from the firm on the date when
the cheques were issued. It would be a matter of evidence
before the trial court as to whether any Retirement Deed and
public notice concerning the same was issued before the
complaint was filed. The order of High Court quashing
summoning order and complaints was set aside.
7. Learned advocate for the respondent strongly
objected this application. By submitting the affidavit-in-reply it
4 of 8
(5) 901criapln3710.23
is submitted that, admittedly there was compromise in between
these applicants and the complainant which is signed by them
before the notary on 20-11-2023, in which it is mentioned that
there is a partnership between the applicants and accused No.1.
Therefore, under Section 141 of the N. I. Act there is criminal
liability of all these applicants with accused No.1, who are
admittedly partners. Therefore it is prayed to reject the
application.
8. Perused the complaint. The complaint does not
disclose that said offence was committed with the knowledge of
applicant partners which is a requirement of section 141 of N. I.
Act. Admittedly cheque is signed by applicant No.1. Thus, as per
case in hand knowledge of the applicants is neither pleaded nor
established that cheque was issued with their knowledge and
therefore, they are criminally liable.
9. There are some kind of civil and criminal mischiefs
and liabilities (i) Purely civil (ii) Purely criminal (iii) Both civil
5 of 8
(6) 901criapln3710.23
and criminal (iv) Misconduct of public servant etc. for
departmental actions (v) Corporate liability under Section 141
of N. I. Act (vi) Joint and several liabilities etc. The concept of
civil and criminal liabilities has been clarified by the Hon'ble
Supreme Court in case of Kapurchand Pokhraj Vs. State of
Bombay, AIR 1958 SC 993 as under:
"The words "Liability incurred" are very
general and comprehensive and ordinarily take in
both civil and criminal liability. In criminal law the
term "liability" covers every form of punishment to
which a man subjects himself by violating the law of
the land. There is no reason why the all
comprehensive word should not carry it's full import
but be restricted to civil liability alone? The context
does not compel any such limitation."
10. The applicants and others have agreed to their civil
liabilities by executing their compromise deed and for that civil
action like suit for recovery of amount is necessary. But criminal
liability cannot be fastened. When cheque is issued by accused
No.1 who has asserted his criminal liability. It is not shown from
the pleading or by any document from record that the applicants
6 of 8
(7) 901criapln3710.23
were having knowledge of the issuing of the disputed cheque.
The applicants have not signed that cheque. Thus, in view of
the ratio laid down in the authority of Aparna (supra) submitted
on behalf of the applicants, they cannot be held criminally liable
for issuing the disputed cheque. The cheque is not issued on
behalf of partnership firm. On the contrary, it is issued and
signed by accused No.1 only. Therefore, applicants cannot be
held liable and shall not be deemed criminally liable as
contemplated under Section 141 of the N. I. Act. Thus, the
pleading of the complainant lacks about the knowledge of
issuance of cheque to hold them criminally liable. Therefore, the
authority of Riya Bawri (supra) submitted on behalf of
respondent is not helpful to them to reject this application.
11. In view of above reasons, if applicants are compelled
to face said criminal trial, it would be certainly an abuse of
process of court. The application therefore, deserves to be
allowed in terms of prayer clause-B. The application is disposed
of accordingly.
7 of 8
(8) 901criapln3710.23
12. Considering the fact that huge amount of Rs. 35 lacs
is involved and that case was filed in the year 2021, the trial
court is directed to hear and decide the SCC No. 1084/2021
expeditiously, as early as possible and in any case on or before
31.08.2024 and report accordingly.
13. Concerned to inform trial court accordingly.
[SANJAY A. DESHMUKH, J.]
VishalK/901criapln3710.23
8 of 8
