Single judge dismissed writ petitions challenging the issuance of process against firm partners, holding that allegations of incumbency as in-charge persons in the complaint were sufficient and lack of knowledge is a defense for trial.
The writ petitions were dismissed; the Writ of Quatur (quashing) was refused.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.1212 OF 2003
WITH
WRIT PETITION NO.1213 OF 2003
M/s.Shreeji Agro International
& Ors. ...Petitioners
Versus
Shri Navin Kantilal Thakkar & Anr. ...Respondents
Mr.Sandesh D.Patil for Petitioners.
Mr.P.P.Hudlikar with Mrs.Shilpa Joshi
for Respondent No.1.
Mr.A.S.Gadkari, A.P.P. for Respondent No.2.
CORAM: A.M.KHANWILKAR, J.
SEPTEMBER 8, 2004.
P.C.
1. Heard Counsel appearing for the parties.
2. The only contention raised before me is
that the complaint lacks allegation that the
: 2 :
Petitioners 2 and 3 herein, who are partners of
Petitioner No.1 firm, were in-charge of, and were
responsible to the firm for the conduct of the
business of the firm. Besides, there is no
allegation in the complaint as filed that
Petitioners 2 and 3 herein had knowledge about the
commission of the offence. It is contended, in
view of the aforesaid deficiency in the complaint,
the Trial Court has committed manifest error in
issuing process. To buttress this position,
reliance is placed on the decision of the Apex
Court reported in (2002) 7 SCC 655 in the case of
Katta Sujatha (Smt.) vs. Fertilizers & Chemicals
Travancore Ltd. & Anr. and another decision
reported in (2001) 10 SCC 218 in the case of K.P.G.
Nair vs. Jindal Menthol India Ltd.
3. I shall first deal with the reported
decisions of the Apex Court, which are pressed into
service. In the case of Katta Sujatha (Smt.)
(Supra), the fact situation which obtained in that
case as can be discerned from observations in Para
4 of that decision; that it was evidently clear
that the appellant was in no way involved in any of
: 3 :
the transactions referred to in the complaint and
it was not stated that she was in-charge of the
business and was responsible for the conduct of the
business of the firm. In the case of K.P.G. Nair
(Supra), the Apex Court has expounded the legal
position as obtain on account of Section 141(1) of
the Negotiable Instruments Act, which provides that
not only the Company, but also every person who at
the time when the offence was committed was
in-charge of and was responsible to the company for
the conduct of the business of the company, shall
be deemed to be guilty of the offence and liable to
be proceeded against and punished accordingly.
4. In the present case, in Paragraph 1 of the
complaint, it is plainly asserted as follows:
"The Accused No.2, 3 and 4 (accused Nos.2
& 3 - Petitioners 2 & 3 herein) are
partners of the firm and carrying on
business of manufacturing/grinding Aata
from Wheat and supplying Aata to various
customers from the business place,
Bhiwandi, Dist.Thane."
: 4 :
5. To my mind, there is no infirmity in the
view taken by the two Courts below that this
assertion in the complaint was sufficient for
issuance of process against the Petitioners 2 and 3
herein/accused Nos.2 and 3 respectively. The fact
that Petitioners 2 and 3 were not in-charge of, and
were not responsible to the firm for the conduct of
the business of the firm, is a defence available to
the said Petitioners and which fact will have to be
established in evidence.
6. At this stage of the proceedings, no fault
can be found with the order of the Trial Court
issuing process against Petitioners 2 and 3.
Although the firm has been impleaded as Petitioner
No.1 in this proceedings, Counsel for Petitioners
has fairly stated that Petition is not pressed on
behalf of the firm and as mentioned earlier, the
only argument canvassed before this Court is
deficiency in the averment of the complaint as
filed.
7. For the reasons recorded above, there is
: 5 :
no substance in these Petitions. The same are
dismissed.
A.M.KHANWILKAR, J.
2 issues framed by the court
Whether the complaint sufficiently alleging that partners were in-charge and responsible to the firm warrants issuance of process under Section 141 NI Act without specific notice of their knowledge.
Whether the sufficiency of the allegation of status as in-charge and responsible person is a matter for trial or sufficient for the issuance of process.
Colour shows how this judgement treated each authority
Katta Sujatha (Smt.) vs. Fertilizers & Chemicals Travancore Ltd. & Anr.Distinguished¶21
(2002) 7 SCC 655 · Who else cites this
K.P.G. Nair vs. Jindal Menthol India Ltd.Explained¶23
(2001) 10 SCC 218 · Who else cites this
M/s. Shreeji Agro International & Ors.
Shri Navin Kantilal Thakkar
A.M. Khanwilkar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court