Bombay High Court
Mrs Neelam Ajay Sarda vs Mr Ratanlal Madanlal Verma on 28 March, 2025
2025:BHC-NAG:3819
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO.25 OF 2024
PETITIONER : Mrs. Neelam Ajay Sarda,
Age - 45 years, Occupation- Service, Currently
residing at Flat No.44 B-1 Vrindavan
Apartment, Civil Line, Near Hislop College,
Nagpur.
..VERSUS..
RESPONDENTS : 1 Sau. Sheela Jagdish Kabra,
Age-58 years, Occ - Housewife, Through her
PoA Jagdish Ghanshamal Kabra
Age-62 years, Occ - Agriculturist, R/o:"Ashish",
Anikat Road, Near Collector Office, Radhe
Nagar, Akola, Taluka and District Akola.
WITH
CRIMINAL WRIT PETITION NO.26 OF 2024
PETITIONER : Mrs. Neelam Ajay Sarda,
Age-45 years, Occupation - Service, Currently
residing at Flat No.44 B-1 Vrindavan
Apartment, Civil Line, Near Hislop College,
Nagpur
VERSUS
RESPONDENT : Mr. Ratanlal Madanlal Verma,
Age-59 years, Occ - Business, R/o:"Jin Krupa",
Shastri Nagar, Akola, Taluka and District Akola.
WITH
CRIMINAL WRIT PETITION NO.102 OF 2024
PETITIONER : Mrs. Neelam Ajay Sarda,
Aged about 45 years, Occp- Service (as
mentioned in petition), R/o Flat No.44, B-1
Vrindavan Apartment, Civil Lines, Near Hislop
College, Nagpur.
..VERSUS..
RESPONDENT : Jagdish Ghanshamlal Kabra (HUF) Through its
Karta - Jagdish Ghanshamlal Kabra,
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2
Aged about 62 years, Occp - Architech, R/s
"Ashish', Anikat Road, Near Collector Office,
Radhey Nagar, Akola
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Mr H. S. Chitaley, Advocate for Petitioner in all petitions.
Mr S. S. Sarda, Advocate for Respondents in all petitions.
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CORAM : M. W. CHANDWANI, J.
DATED : 28th MARCH, 2025.
ORAL JUDGMENT
1. The issuance of process in Summary Criminal Case Nos.5370
of 2017, 5371 of 2017 and 5372 of 2017 against the petitioner by the
learned Judicial Magistrate First Class, Akola was challenged before the
learned Additional Sessions Judge, Akola on the ground that the
petitioner is neither a partner in the firm namely Shree Sarda Oil
Industries nor any role has been attributed to her in the complaints filed
before the learned Magistrate for the offence punishable under Section
138 of the Negotiable Instruments Act, 1881 for dishonor of cheque.
Hence, these petitions.
2. Since all these writ petitions are arising out of complaints
having identical allegations, therefore, they are being disposed of by this
common judgment.
3. Mr. Chitaley, learned counsel appearing for the petitioner
submits that to attract Section 141 of the Negotiable Instruments Act,
1881 (hereinafter referred to as, "the NI Act"), i.e. vicarious liability, the
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complainant must have averred in the complaint, the specific role of the
petitioner to show how the partner of the firm against whom the
complaint under Section 138 of the NI Act has been filed was in-charge
and responsible for the day-to-day affairs of the firm. However, nothing
has been mentioned in the complaint to deduce what role was assigned to
the petitioner. According to him, a bald allegation would not suffice the
purpose. To buttress his submission, he seeks to rely on the decision of
the Hon'ble Supreme Court in the case of Ashoke Mal Bafna vs. Upper
India Steel Manufacturing and Engineering Company Limited, (2018)
14 SCC 202, wherein the Supreme Court in paragraphs 8 and 9 has held
as under:
"8. Interpreting the provisions of Section 141 this Court in
National Small Industries Corpn. Ltd. v. Harmeet Singh Paintal,
(2010) 3 SCC 330 observed that Section 141 is a penal provision
creating vicarious liability, and which, as per settled law, must be
strictly construed. It is therefore, not sufficient to make a bald
cursory statement in a complaint that the Director (arrayed as an
accused) is in-charge of and responsible to the Company for the
conduct of business of the Company without anything more as
to the role of the Director. But the complaint should spell out as
to how and in what manner the accused was in-charge of or was
responsible to the Company for the conduct of its business. This
is in consonance with strict interpretation of penal statutes
especially where such statutes create vicarious liability.
9. To fasten vicarious liability under Section 141 of the
Act on a person, the law is well settled by this Court in a catena
of cases that the complainant should specifically show as to how
and in what manner the accused was responsible. Simply because
a person is a Director of a defaulter Company, does not make
him liable under the Act. Time and again, it has been asserted by
this Court that only the person who was at the helm of affairs of
the Company and in-charge of and responsible for the conduct
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of the business at the time of commission of an offence will be
liable for criminal action."
4. Next, Mr Chitaley, learned counsel would submit that the
petitioner is not a partner in the firm either M/s Shri Sarda Oil Industries
or Shree Sarda Oil Industries. It is for the complainant to demonstrate
the petitioner's status as a partner in the firm by filing supporting
documents. However, only a bald statement has been made without
being substantiated by any documentary evidence to show that the
petitioner is indeed a partner. According to him, she is neither a partner
in Shree Sarda Oil Industries nor in M/s Shri Sarda Oil Industries. This
aspect has not been considered by the Revisional Court as well as by the
learned Trial Court while issuing the process. Hence, he sought quashing
of the proceedings.
5. Per contra, Mr Sarda, learned counsel appearing for the
respondent vehemently submitted that the complaint is complete in all
respects and the complaint reveals the commission of offence by the
petitioner by invoking Section 141 of the NI Act. According to him,
there are specific allegations that demonstrate the petitioner's role in the
partnership firm where she was responsible for overseeing the firm's
purchases. According to him, the defence of the petitioner cannot be
considered at this stage. To buttress his submission, he seeks to rely on
the case of S. P. Mani and Mohan Dairy vs. Dr. Snehalatha Elangovan,
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(2023) 10 SCC 685, wherein the Hon'ble Supreme Court in para No.58
has held as under :
"58. Our final conclusions may be summarised as under:
58.1. The primary responsibility of the complainant is to
make specific averments in the complaint so as to make the
accused vicariously liable. For fastening the criminal liability,
there is no legal requirement for the complainant to show that
the accused partner of the firm was aware about each and every
transaction. On the other hand, the first proviso to subsection
(1) of Section 141 of the Act clearly lays down that if the accused
is able to prove to the satisfaction of the Court that the offence
was committed without his/her knowledge or he/she had
exercised due diligence to prevent the commission of such
offence, he/she will not be liable of punishment.
58.2. The complainant is supposed to know only generally
as to who were in charge of the affairs of the company or firm, as
the case may be. The other administrative matters would be
within the special knowledge of the company or the firm and
those who are in-charge of it. In such circumstances, the
complainant is expected to allege that the persons named in the
complaint are in-charge of the affairs of the company/firm. It is
only the Directors of the company or the partners of the firm, as
the case may be, who have the special knowledge about the role
they had played in the company or the partners in a firm to show
before the court that at the relevant point of time they were not
in-charge of the affairs of the company. Advertence to Section
138 and Section 141, respectively, of the NI Act shows that on
the other elements of an offence under Section 138 being
satisfied, the burden is on the Board of Directors or the officers
in-charge of the affairs of the company/partners of a firm to show
that they were not liable to be convicted. The existence of any
special circumstance that makes them not liable is something
that is peculiarly within their knowledge and it is for them to
establish at the trial to show that at the relevant time they were
not in-charge of the affairs of the company or the firm.
58.3. Needless to say, the final judgment and order would
depend on the evidence adduced. Criminal liability is attracted
only on those, who at the time of commission of the offence,
were in-charge of and were responsible for the conduct of the
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business of the firm. But vicarious criminal liability can be
inferred against the partners of a firm when it is specifically
averred in the complaint about the status of the partners 'qua' the
firm. This would make them liable to face the prosecution but it
does not lead to automatic conviction. Hence, they are not
adversely prejudiced if they are eventually found to be not guilty,
as a necessary consequence thereof would be acquittal.
........
........"
6. With the help of the learned counsel appearing for the
respective parties, I have gone through the complaint. Bare perusal of the
complaint particularly, para No.1 of the complaint reveals that apart from
the petitioner, accused Nos.3, 5 and 7 in the complaint are also shown as
persons responsible for overseeing the purchase, accounts and
management of the accused firm. Therefore, from this para of the
complaint, one can have the central idea of the petitioner's role in the
firm as held in the case of S. P. Mani and Mohan Dairy (supra) that the
complainant is supposed to know only generally as to who were in-charge
of the affairs of the company or firm, the other administrative matters
would be within the special knowledge of the company or the firm and
those who are in-charge of it. Needless to mention that the evidence is
yet to be adduced in the proceedings and criminal liability will be
attracted only after considering the evidence adduced before the learned
Magistrate. At this stage, in my view, the complaint contains sufficient
averments to warrant the issuance of process against the petitioner.
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7. This takes me to the next ground. Evidently, the allegations in
the complaint have been made on oath and the Magistrate after relying
on these allegations has issued process, wherein it is specifically pleaded
that the petitioner is one of the partners of the firm. It is also to be noted
here that the firm is an unregistered firm, the complainant would have
had limited material to place before the learned Magistrate to establish
that the petitioner is one of the partners of the firm. The petitioner
attempted to support her case by producing a document from the
Registrar of the firm showing that the petitioner is not a partner in Shri
Sarda Oil Industries, whereas the cheque in question was issued by "Shree
Sarda Oil Industries", which is admittedly an unregistered firm. This may
be a viable defence for the petitioner which can be considered by the
Magistrate at the time of trial. At this stage, no fault can be seen with the
order of the learned Magistrate in issuing the process against the
petitioner and the dismissal of the revision application by the Revisional
Court. Hence, no interference is required. The petition lacks merits,
hence, it is dismissed.
(M. W. CHANDWANI, J.)
Tambe
Signed by: Mr. Ashish Tambe
Designation: PA To Honourable Judge
Date: 09/04/2025 19:03:23
