Bombay High Court
Madhav S/O Jagannath Patil vs The State Of Maharashtra And Other on 22 September, 2025
2025:BHC-NAG:9650
4) APL 164-2025 (J).odt 1/7
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPLICATION (APL) NO. 164 OF 2025
Madhav S/o Jagannath Patil,
Aged About 67 years, Occu :
Agriculturist, R/o Brahmanpuri,
Taluka Shahada, Distt. Nandurbar. ....APPLICANT
....VERSUS....
1) The State of Maharashtra (Notice
be served on A.G.P)
2) Nemichandji S/o Bhikamchandji
Abad, Aged About 61 years, Occu :
Business, R/o Opposite Abad
Bhavan Wani, Tq. Wani, Distt.
Yavatmal.
3) Devendra Tractor Agencies,
Deleted as per Through Shri Rajendra Ramanlal
Court's order
dated
Bhavsar, Aged About 45 years,
22/09/2025 Occu : Business, R/o Near Gayatri
Hospital, Infront of Central Bank,
Shivcolony stop, Jalgaon, Distt.
Jalgaon ....NON-APPLICANTS
-----------------------------------------------------------------------------------------
Shri T.S.Deshpande, Advocate for applicant.
Shri N.R.Patil, APP for respondent no. 1/State.
Shri R.S.Bhoyar, Advocate for respondent no. 2.
-----------------------------------------------------------------------------------------
CORAM : RAJNISH R. VYAS, J.
DATE: 22/09/2025
4) APL 164-2025 (J).odt 2/7
ORAL JUDGMENT
Heard.
2. Admit.
3. The matter is taken up for final disposal by
consent of both the parties.
4. The learned counsel for the applicant makes a
request to this Court to grant him permission to delete the
name of non-applicant no. 3 from the cause title. Permission is
granted. The applicant to delete the non-applicant no. 3
forthwith.
5. By way of instant Criminal Application (APL), the
applicant who is original accused has challenged the order
issuing process under Section 138 of the Negotiable
Instrument Act (in short, "the N.I. Act") so also order
dismissing his Criminal Revision Application passed by
Additional Sessions Judge - 2, Kelapur before this Court.
6. In short, it is the case of the applicant that a
complaint under Section 138 of the Negotiable Instrument Act
was filed against the applicant and he was shown of one of
the partners of the firm. According to the learned counsel for
the applicant, there are no pleadings which would attract the
liability under Section 138 and 141 of the N.I. Act since the
necessary averments are missing.
7. Per contra, Mr. Rushikesh Bhoyar, learned counsel
for the original complainant and present non-applicant no. 2
has contended that it would be a matter of trial to arrive at the
conclusion as to whether the applicant was In-charge of the
affairs of the company or was responsible for day to day
functioning of the company (in this case, "the firm").
8. With the help of both the learned counsels, I have
gone through the averments made in the complaint. So far as
the present applicant is concerned, he is shown as accused no.
3 in the Criminal Complaint No. 1587/2011. The averments in
the complaint are reproduced herein below:
"Then after complainant Shri. Nemichandji
Bhikamchandji Abad tried to contact accused no. 02
Shri. Rajendra Ramnanlal Bhavsa, one of the partners
of accused no. 01 firm and also accused no. 03, but they
always avoided willfully. Accused no. 02 and 03 both
are manage day to day affairs of the accused no. 01 firm
and both are responsible for the affairs of accused no, o1
firm, individual work of partner/agent on behalf of firm
or for firm. Hence being partners of accused no. 01
firm both accused no, 02 and 03are responsible & labial
for each liability of accused no. 01 firm or individual
partner."
9. My attention is also invited to page 12 in a
complaint wherein the following averments are made:-
"Accused no. 03 named Shri. Madhav Jagannath Patil
is partner of the accused no. 01 firm. Both accused no.
02 and 03 are actively engaged in the business of the
accused no. 01 firm and manage day to day affairs of
the firm, for its day to day affairs and conduct of the
business of the accused no. 01 firm. Both accused no.
01 and 02 are responsible for the act of the accused, no.
01 firm, individual work of partner/agent on behalf of
firm or for firm."
10. I have considered the provisions of Section 138
and 141 of the N.I. Act. The explanation of Section 141 of the
N.I. Act reads as under:-
"Explanation.--For the purpose of this section,--
(a) "company" means any body corporate and includes
a firm or other association of individuals."
Sub-section 1 of Section 141 of the N.I.Act
reads as under:-
"If the person committing an offence under section 138
is a company, every person who, at the time the offence
was committed, was incharge of, and was responsible to
the company for the conduct of the business of the
company, as well as company, shall be deemed to be
guilty of the offence and shall be liable to be proceeded
against and punished accordingly."
11. In the aforesaid background, the averments made
in complaint are tested. Admittedly, there is no averment in
complaint that the applicant was In-charge of the company (in
present case "the firm"). In order buttress his argument, the
learned counsel for the applicant has relied upon the
judgment in the case of Siba Thomas V/s. Somany Ceramics
Limited reported in (2024) 1 SCC 348, wherein in para 12,
Hon'ble Apex Court has observed as under:-
"Bearing in mind the afore-extracted recitals from the
decisions in Gunmala Sales (P.) Ltd. v. Anu Mehta
{(2015) 1 SCC 103} and S.P. Mani & Mohan Dairy v.
Snehalatha Elangovan {(2023) 10 SCC 685} case, we
have carefully gone through the complaint filed by the
respondent. It is not averred anywhere in the
complaint that the appellant was in charge of the
conduct of the business of the company at the relevant
time when the offence was committed."
12. The learned counsel for the complainant has
invited my attention to the ratio laid down by the Hon'ble
Apex Court in the case of Gunmala Sales (P.) Ltd. (supra).
Needless to mention the case of Gunmala Sales (P.) Ltd.
(supra) was considered by the Hon'ble Apex Court in the
judgment referred above. In that view of the matter, since
there are absolutely no averments in the complaint regarding
applicant being In-chrge of the company, I am of the opinion
that continuation of prosecution against the applicant would
not be in the interest of justice. Therefore, order issuing
process as well as order dismissing Revision Application are
liable to be quashed and set aside. As such, the Criminal
Application (APL) is allowed.
13. The order issuing notice process dated
05/11/2011 passed by the learned Judicial Magistrate First
Class, Wani, District Yavatmal so also order dismissing
Criminal Revision Application No. 03/2019 passed the
learned Additional Sessions Judge-2, Kelapur on 30/09/2024
are hereby quashed and set aside.
14. It is made clear that the complaint would proceed
against other accused.
15. Accordingly, the application is disposed of.
(RAJNISH R. VYAS, J.)
B.T.Khapekar
Signed by: Mr. B.T. Khapekar
Designation: PA To Honourable Judge
Date: 24/09/2025 14:16:44
