Telangana High Court
Sri Vaibhav Maloo, vs The State Of Andhra Pradesh, on 8 September, 2022
Bench: K.Surender
THE HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL PETITION Nos.7964 and 8377 OF 2013
COMMON ORDER:
1.
Criminal Petition No.7964 of 2013 is filed by A-3 and
Criminal Petition No.8377 of 2013 is filed by A-4 in CC No.33 of
2013. Since both the petitioners are accused in the same
complaint, these petitions are disposed off by way of this
Common Order.
2. For the sake of convenience, the parties hereinafter will be
referred to as arrayed in the CC. The case of the complainant
/M/s.Creative Electronics is that A1 approached the
complainant for supply of cash counting machines on credit
basis. The accused promised to pay the complainant interest at
25% if goods are given on credit. Accordingly, complainant
delivered cash counting machines to the accused when order
was placed and the cheque in question bearing No.254971,
dated 07.01.2009 was issued for Rs.80,60,546/- towards
payment of outstanding. The said cheque when presented for
clearance was returned with endorsement "payment stopped by
the drawer". Since the cheque was returned unpaid and after
service of notice, as the amount covered by the cheque was not
paid, present complaint is filed and same was taken on file
against A1 and seven other Directors.
3. Learned counsel for the petitioners/accused submits that
the complainant has not filed any documents before the Court to
show that it was a partnership firm which was registered under
Section 69(a) of the Indian Partnership Act. In the absence of
any such partnership in accordance with the Partnership Act,
the company cannot maintain a complaint. In support of his
contention, he relied on the judgment of this Court in Amit Desai
v. Shine Enterprises in Criminal Petition No.5313 of 1998 dated
09.02.2000.
4. As seen from the complaint, the complainant has described
itself as a partnership firm in the name of M/s.Creative
Electronics. The list of documents does not contain any
partnership deed of the complainant.
5. In the said complaint, except stating that the petitioner/A4
in Crl.Petition No.8377 of 2013 is also responsible for the day to
day affairs, it is not averred in the complaint as to how A4 was
responsible in dealing with the complainant company in
procuring money counting machines. It is not specifically
mentioned in the complaint that this petitioner at any point of
time interacted with any of the personnel of the complainant firm
while transacting business for purchase of money counting
machines. In the said circumstances, when no specific
averments are made as to how this petitioner/A4 was
responsible for the transactions in between the complainant and
the accused company, prosecution cannot be maintained against
this petitioner.
6. Accordingly, the proceedings in CC No.33 of 2013 on the
file of XXIV Special Magistrate Erramanzil, Hyderabad is liable to
be quashed against A-4 and accordingly quashed.
5. It is alleged in the complaint that petitioner/A3 in
Crl.Petition No.7964 of 2013 is signatory to the said cheque. For
the said reason, the proceedings cannot be quashed against this
petitioner. However the ground taken by the petitioner is that
the complainant firm is not a registered firm in accordance with
Section 69(2) of the Partnership Act and no complaint can be
maintained.
6. Learned Magistrate is directed to consider the application
made by the petitioner/A3 seeking discharge on the ground of
the complainant not being a partnership firm. The Hon'ble
Supreme Court in the case of Bhushan Kumar v. State (NCT of
Delhi) in Criminal Appeal No.612 of 2012, dated 04.04.2012,
wherein the Hon'ble Supreme Court held as follows:
"17. It is inherent in Section 251 of the Code that when an accused
appears before the trial Court pursuant to summons issued under
Section 204 of the Code in a summons trial case, it is the bounden
duty of the trial Court to carefully go through the allegations made in
the charge sheet or complaint and consider the evidence to come to a
conclusion whether or not, commission of any offence is disclosed
and if the answer is in the affirmative, the Magistrate shall explain
the substance of the accusation to the accused and ask him whether
he pleads guilty otherwise, he is bound to discharge the accused as
per Section 239 of the Code."
7. The learned Magistrate trying the case shall initially decide
on the issue whether the complainant firm is partnership firm or
not at the time of filing complaint by giving an opportunity to
Complainant. In the event of complainant not being a
partnership firm, the learned Magistrate shall discharge the
accused, following the dictum in Amit Desai v. Shine
Enterprises.
8. In the result, Criminal Petition No.7964 of 2013 is disposed
off and Criminal Petition No.8377 of 2013 is allowed.
_________________
K.SURENDER, J
Date:08.09.2022
kvs
THE HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL PETITION Nos.7964 and 8377 OF 2009
Dated:08.09.2022
kvs
