Delhi High Court
Messers Webnet Software ... vs Anand Sethi And Another on 14 August, 2015
Author: Suresh Kait
$~18
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on:14th August, 2015
+ CRL.M.C. No.3128/2015
M/S WEBNET SOFTWARE TECHNOLOGY AND OTHERS
..... Petitioners
Represented by: Mr. Ankur Mahendroo and
Mr. Shresth Choudhary, Advocates.
Versus
ANAND SETHI AND ANOTHER ..... Respondents
Represented by: Mr. S.C. Arora, Advocate for
Respondent No.1.
Mr.Sudhershan Joon, Additional
Public Prosecutor for the State.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)
CRL.M.C. No.3128/2015
1. By way of this petition filed under Section 482 of the Code of
Criminal Procedure, 1973, petitioners seek quashing of complaint case
titled as 'Anand Sethi Vs. Sandeep Bajaj & Ors.' and the consequent
proceedings arising therefrom.
2. Learned counsel appearing on behalf of the petitioners submits that
the cheque in question was issued on behalf of the partnership firm,
wherein the complainant/respondent No.1 was also a partner, the said firm
has not been dissolved, thus, the complainant cannot sue the petitioners
for dishonour of the cheque in question.
3. On this issue, the learned counsel has relied upon the case of
Mukesh Raoji Navadhare Vs. Ajit Bhaskar Kasbekar & Anr. 2010 (2)
Crl. CC 0213 (Bombay), wherein held as under:-
"5. A partnership firm is not a body corporate.
Section 4 of the Partnership Act defines
"partnership" as relation between the persons who
have agreed to share profit of a business carried
on by all or any of them acting for all. The persons
who have entered into a partnership with one
another are called individually as partners and
collectively "a firm". The name under which the
business is carried on is called the firm name. The
firm name is merely a compendious name given to
group of persons who have agreed to carry on
business in partnership.
6. In M/s Malabar Fisheries Co. v. The
Commissioner of Income Tax, Kerala, AIR 1980
SC 176, the Supreme Court has considered the
nature of a firm and has explained the difference
between the mercantile view and the legal view on
a partnership firm. Merchants and lawyers have
different notions in respect of a firm. Commercial
men and accountants are apt to look upon a firm in
the light in which lawyers look upon a corporation
i.e., as a body distinct from the members
composing it, and having rights and obligations
distinct from those of its members. Hence, in
keeping partnership accounts, the firm is made
debtor to each partner for what he brings into the
common stock, and each partner is made debtor to
the firm for all that he takes out of that stock. In
the mercantile view, partners are never indebted to
each other in respect of partnership transactions;
but are always either debtors to or creditors of the
firm. But this is not the legal notion of a firm. The
firm is not recognized by lawyers as distinct from
member compositing it. The law, ignoring the firm,
looks to the partners composing it. Property of the
firm is their property and what is called the debts
and liabilities of the firm are their debts and their
liabilities. In a point of law, a partner may be a
debtor or the creditor of his co-partner, but he
cannot be either debtor or creditor of a firm of
which he himself is a member. In para 18 of the
decision, the Supreme Court observed:
"18. Having regard to the above discussion,
it seems to us clear that a partnership firm
under the Indian Partnership Act, 1932 is
not a distinct legal entity apart from the
partners constituting it and equally in law
the firm as such has no separate rights of its
own in the partnership assets and when one
talks of the firm's property or firm's assets
all that is meant is property or assets in
which all partners have a joint or common
interest."
4. Also relied upon the case of Keki Hormusji Gharda and Others
Vs. Mehervan Rustom Irani and Another, (2009) 6 SCC 475I.
5. Learned counsel submits that the cheque issued on behalf of the
partnership firm is deemed to be issued by all the partners; thus, one
partner cannot sue another partner in case the said cheque gets
dishonoured. Therefore, there is no merit in the complaint filed by the
respondent No.1.
6. The facts remain that the complaint was filed in the year 2003,
summons against the petitioners were also issued in the year 2003 and the
matter is pending for defence evidence. Whereas, the present petition has
been filed in the year 2014, i.e., after more than a decade, when the case
of the complainant/respondent No.1 is at the feg end.
7. So far as the question of law is concerned, the Trial Court has
power to decide this issue if it is raised by the petitioners.
8. In view of the above noted facts and considering the fact that the
aforesaid criminal complaint is at its feg end, I am not inclined to pass any
order in this petition, however, liberty is granted to the petitioners to raise
all the issues before the Trial Court at the appropriate stage.
9. The petition stands dismissed accordingly.
Crl. M.A. No. 10831/2014 (for stay)
With the dismissal of the petition itself, the instant application has
become infructuous. The same is accordingly dismissed.
SURESH KAIT
(JUDGE)
AUGUST 14, 2015
sb
