Allowed

Sanjay Madhav Athavale v. Gupta Enterprises and Ors.

Bombay HC21 Aug 2006WP/903/2006

Case brief

AI extract

What is this about?

Writ petition challenging an order wherein summons issued under Section 141 of NI Act against a partnership firm were deemed served on a partner declared non-accused. Held that impugned order was erroneous and allowed.

What did the court decide?

Impugned order quashed and set aside; application to not record plea allowed; question of representing firm kept open.

Sanjay Madhav Athavale Vs Gupta Enterprises and Ors. — Cheque Dishonour | Bombay HC (2006)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.903 OF 2006

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Sanjay Madhav Athavale

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...Petitioner

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vs.

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Gupta Enterprises and others

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...Respondents

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Mr.U.P.Warunjikar for the Petitioner Mr.A.V.Anturkar with Mr.S.B.Deshmukh for Respondent No.1 Mr.S.R.Shinde, A.P.P. for State

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CORAM: A.S.OKA,J. DATE : AUGUST 21, 2006.

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P.C.:

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1.	On	17th August	2006	the	Petition	was	finally	heard.	The
challenge	in	this W	rit P	etition		under	Article	227	of
Constitution		of India	is to	the	Order	dated	2nd	March	2006
passed	by	the	learned	Judi	cial	Magist	rate	(First	Class),

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Khadaki Court, Pune. By the said order, the application made

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by the present Petitioner at Exh.76 has been rejected.

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2.	The	first	R	espondent	is	a	complain	ant	in	a	private
complaint	f	iled	for	offences	puni	shable	under		section	138	of
the	Nego	tiable	In	struments	Act,	18	81	(her	einafter	referred	to
as said	Act	of	1881)	and	section	420	of	the	Indian	Penal	Code.
The	Respond	ent	Nos.2	to	4 are	arrai	gned	as	accused	persons	in
the	said	p	rivate	complaint	.	The	learned		Magistr	ate	issued
process	on	the	said	complai	nt.	The	summo	ns	addressed	to	the
second	responden	t	was	served	on	the	Petitione	r	herein.	In	the
application	at		exh.	76 mad	e by	the	Petitio	ner	herein,	it	was
contended	th	at	he w	as not	perso	nally	served		with any	su	mmons
and	process	has	not	been	issued	against	him.		He	stated	that

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he	has	been	served	with		a	summ	ons	addressed	to	the	Respo	ndent
No.2.		The	prayer	in	the		applica	tion	was	for	seeking	dir	ection
not t	o	record	the	p	lea		against	the	Appli	cant.	T	he	said
application		was	conte	sted	by		the	first	Respo	ndent	by	filing	a
reply.		The	contenti	on	rais	ed	in	the	reply	wa	s	that	the
Petitioner		is a	partn	er of	t	he	firm	and	is	a s	ignatory	to	the
cheque.		The	le	arned	Ma	gis	trate	while	passing		the	imp	ugned
order		observed	that	it	wa	s	prem	ature	to	accept	the	conte	ntion
of	the	first	Respo	ndent	that		the	chequ	e in	ques	tion	bears	the
signature		of	the	present		Pe	titioner.		The	learned		Magi	strate

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observed that it was premature to decide the contentions

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raised by the present Petitioner.

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3.	The	learned		Counsel	for	the	Petitio	ner	subm	itted	that	the
summons	was	received	b	y the	Peti	tioner	as	add	ress	of	the	first
accused	mentio	ned	in	the su	mmons	was	of	the	Petit	ioner.		He
submitted	that	only		a limi	ted	reque	st	was	ma	de	in	the
Application	tha	t t	he	plea	of	the	Petitione	r	should		not	be
recorded	as he	was	not	named	as	an	accused.		He	sub	mitted	that

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there is non-application of mind on the part of the learned

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Magistrate.

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4.		Shri A	nturkar	appearing	for	th	e Res	pondent	submitte	d that
the	first	accused	was	a partne	rship f	ir	m and	as	the	Petitioner
was	re	presenting	the	partnership	firm		being	its	partner,	his
plea	will	have	to	be recorded.	He		invited	my	attention	to
section	14	1 of	the	said Act	of 1881		and	submitted	that	the

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first accused which is a partnership firm will have to be

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represented by its partner.

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I have considered the submissions. In the complaint filed by the first Respondent, the address of the first accused is shown as "10, Swati Apartments, 2A/194, Azad Nagar, Kanpur 208 002." It appears that an application was made at Exh.61 by the

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first Respondent for sending the summons of the first accused

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at a new address which is described as under :

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. Auto Parts Inc

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C/O. Mr.Sanjay Madhav Athavale No.5, Ankur Apartments, 128/4, Sanewadi Aundh, Pune - 411 007. 6. Perusal of the complaint shows that no allegation has been made personally against the Petitioner in complaint. Even in the verification no allegation has been made against the Petitioner. It is not even alleged either in the complaint or in the verification that the Petitioner was incharge of and

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was responsible for the conduct of the business of the first

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accused.

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7.	The	impugn	ed orde	r pro	ceeds	on	erro	neous	assu	mption	that
the	summons	has	been	served	to	the	prese	nt	Petitione	r in	his
capacity	as	the	represent	ative	of	the	firm.		It	is	obvious
from	the	exh.61	and	cause	title	of	the	com	plaint	that	the
summons	was	n	ot serve	d to	the	Petit	ioner	in	his	capacity	as
representa	tive	of	the fir	st a	ccused-	firm.		The	add	ress of	the
first	accused	fir	m was	given	as	c/o	Sa	njay	Madha	v A	thawale.
However,	the	learned	Magist	rate	has	obse	rved	in	para	graph 3	of
the	impugned	order	that	the	su	mmons		was	serve	d on	the

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Petitioner	in	his	capaci	ty	as	r	epresenta	tive	of	the	fir	m.	The
said	obser	vation	made		by	the	lear	ned	Ma	gistrate	is		factually
incorrect.		In	my		view,	the	learn	ed	Judge	has	c	ommitted	a
serious	erro	r	by	not	co	nside	ring		the	merits		of	the
application.			Consideri	ng	the		material		on	record	as	of	today,
the	applicat	ion	made	by	th	e	Petition	er	at	Exh.76	des	erves	to
be al	lowed.		The	Pet	itioner	is	not	an	accu	sed as		of	today.
Even	in	the	reply		filed	by	the		first	Respon	dent	to	the
Application		at	Exh.7	6,	it	is	not	con	tended	that	the	plea	of
the Peti	tioner	is	required		to	be	reco	rded	in	his	capa	city	as a

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representative. Hence, impugned order deserves to be quashed

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and set aside. Application deserves to be allowed.

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. Hence, I pass the following order :

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i) Impugned order dated 2nd March 2006 passed by the learned Judicial Magistrate (First Class), Pune is quashed and set aside and the application at Exh.76 made by the Petitioner is allowed. ii) All contentions on merits of the complaint are kept open.

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The question whether the Petitioner can represent the first

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accused-firm is also expressly kept open.

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iii) Rule is made absolute in above terms.

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JUDGE

Sanjay Madhav Athavale v. Gupta Enterprises and Ors.

Case brief

What is this about?

What did the court decide?

Sanjay Madhav Athavale v. Gupta Enterprises and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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