Quashed

M/S. Protech Telelinks v. State of Maharashtra and Anr.

Bombay HC7 Dec 2023WP/2180/2023

Case brief

AI extract

What is this about?

Criminal Writ Petition filed by a partnership firm challenging the issue process order passed by a Metropolitan Magistrate. The High Court quashed the order as the Magistrate incorrectly treated an individual partner as accused despite the complaint naming only the firm. The matter is remanded for fresh consideration.

What did the court decide?

Impugned order dated 05.08.2022 passed by the Metropolitan Magistrate is quashed and set aside. The Magistrate is directed to consider the issuance of process afresh based on the title and averments o

M/S. Protech Telelinks Vs State of Maharashtra and Anr. — Cheque Dishonour | Bombay HC (2023)

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18-wp-2180-23

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Gokhale

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL WRIT PETITION NO. 2180 OF 2023

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M/s. Protech Telelinks ..Petitioner
Versus

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The State of Maharashtra & Anr...Respondents

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__________
Mr. Viquar Rajguru a/w. Himanshu P. Singh i/b. S. A. Legal for
Petitioner.

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Ms. Sangita D. Shinde, APP for State/Respondent No.1.

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Mr. Bhomesh Bellam a/w. Xetres Bharucha i/b. Purnanand and Co.
for Respondent No.2.

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CORAM : SARANG V. KOTWAL, J.
DATE : 7DECEMBER 2023

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PC :

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1.The petitioner has challenged the order dated

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05.08.2022 passed by the Metropolitan Magistrate, 48th Court,

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Andheri, Mumbai, issuing process U/s.138 r/w. 141 of the
Negotiable Instruments Act, in S.C.C.No.97/SC/2021.

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2.Heard Mr. Viquar Rajguru, learned counsel for the

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Petitioner, Ms. Sangita Shinde, learned APP for the
State/Respondent No.1 and Mr. Bhomesh Bellam, learned counsel
for the Respondent No.2.

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Digitally signed by VINOD VINOD BHASKAR BHASKAR GOKHALE GOKHALE Date: 2023.12.08 14:47:13 +0530

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3. At the outset, it must be mentioned that the accused in

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the said complaint is described as :

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“M/s. Protech Telelinks
A partnership firm, Constituted under
the Indian Partnership Act, 1932
Through its Partner,
Mr. Aniket Dhingra,
Vill Ogli Suketi Road,
Kala AMB, Simaur,
Himachal Pradesh 173030.”

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There is only one accused mentioned in that complaint.

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4. The complaint is filed by the respondent No.2 herein. It

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is his case that, in respect of the material sold, supplied and
delivered to the accused, the complainant raised an Invoice dated
15.02.2021 for an amount of Rs.80,30,018/-. In repayment of that
liability and the dues, a cheque dated 07.06.2021 for an amount of
Rs.80,64,048/-, drawn on Yes Bank, Model Town, Yamuna Nagar
branch was issued by the accused. It was dishonoured and
thereafter this complaint was filed on 15.11.2021.

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5. The present petition is filed by the same accused M/s. Protech Telelinks. Therefore, it appears that the partnership firm is

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made an accused through its partner. The partners of the
partnership firm are not separately made accused in the complaint.
In this background, learned Magistrate passed the following order:

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“Read complaint, perused affidavit of verification of
the complainant and also gone through the
documents produced on record. So also
complainant has filed affidavit of evidence u/s. 145
of N.I. Act along with original documents. Heard
the learned advocate on behalf of the complainant.
It appears that this complaint is filed within the
period of limitation. Accused is the partner of
Partnership firm as mentioned in the complaint.
Accused is looking after the day to day affairs of
partnership firm. Further, the documents produced
on record and from the affidavit of the verification
of the complainant, it appears that there is sufficient
ground to proceed against the accused for the
offence punishable under section 138 of the
Negotiable Instruments Act. Hence, I pass following
order:-

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O R D E R

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Issue process against accused for the
offence punishable under Section 138 r/w. 141 of
Negotiable Instruments Act, R/o. 27/09/2022.”

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6. Learned counsel for the petitioners submitted that the

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impugned order shows that the learned Magistrate has not applied
his mind and, therefore, the cognizance is not proper. The learned
Magistrate has observed that the accused was the partner of the

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partnership firm as mentioned in the complaint. The learned
Magistrate has gone on to observe that the accused was looking
after the day to day affairs of the partnership firm. He submitted
that, there is no such averment in the complaint. He submitted
that the learned Magistrate had treated an individual partner and
not the partnership firm as the accused. There is only one accused
in the complaint. Therefore, the impugned order is liable to be set
aside as there is no proper application of mind. He submitted that,
after setting aside the impugned order, the matter be remanded
back for fresh consideration on the basis of the title of the
complaint with reference to the particular accused which is the
partnership firm.

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7.Learned counsel for the Respondent No.2 agreed that
there is no averment in the complaint that the accused was looking
after the day to day affairs of the partnership firm. He also
concedes that, an individual partner is not made a separate
accused in this case, but the partnership firm is the only accused.
He, therefore, could not defend the impugned order which was
based on the observation regarding the role of an individual

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partner.

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8.I have considered these submissions. I find substance in

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the submissions of learned counsel for the petitioner. The
complaint is filed only against one accused i.e. the partnership
firm, though, it is mentioned that the accused is M/s.Protech
Telelinks, a partnership firm, through its partner Mr. Aniket
Dhingra. There is only one accused in the complaint. Learned
counsel for the complainant submits that the partnership firm is
the accused in the case. In any case, the complaint would not be
maintainable unless the partnership firm is made as an accused as
the cheque is issued by the partnership firm. In this view of the
matter, the observation of the learned Magistrate that, accused was
looking after the day to day affairs of the partnership firm is not
factually correct as there is no such averment in the complaint.
Secondly, the learned Magistrate has treated the individual partner
as the accused which is not even the case of the complainant and
in particular, the title of the complaint shows that the partnership
firm is the only accused.

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9.The present petition is filed by the partnership firm.

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Learned counsel for the petitioner has pointed out this infirmity in
the impugned order. In this view of the matter, as submitted by the
learned counsel for the petitioner, the impugned order is liable to
be set aside with further directions of remanding back the case for
fresh consideration by the learned Magistrate.

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10.Hence, the following order:

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O R D E R

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i) The impugned order dated 05.08.2022 passed by the Metropolitan Magistrate, 48^th Court, Andheri, Mumbai, in S.C.C.No.97/SC/2021, is quashed and set aside.

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ii)The learned Magistrate shall consider the
question of issuance of process afresh based on
the title and the averments made in the
complaint.

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iii)With this direction, the petition is disposed of.

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(SARANG V. KOTWAL, J.)

M/S. Protech Telelinks v. State of Maharashtra and Anr.

Case brief

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What did the court decide?

M/S. Protech Telelinks v. State of Maharashtra and Anr.

Case brief

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What did the court decide?

What the court decided

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