Friday, 16 August 2019

Whether legal hairs of accused can be made to face trial for offence for dishonour of cheque?

 Obviously, it is unknown to the law that legal heirs of the accused are to face the trial for the alleged criminal act of the deceased. Had any of the petitioners been a partner at the time when the cheque was issued, there would have been no difficulty for holding them liable for the offence under Sec. 138 or 141 of the Act. None of the petitioners was a partner of the firm and even had not been inducted as partner after the death of Mr. Vijay Sippi as well; in such situation can it be said that they would still be liable for a criminal action under lite provisions of the Act for the action of the firm, of which neither of the petitioners admittedly was a partner or is a partner or is incharge of the firm? Obviously the answer is No.

IN THE HIGH COURT OF RAJASTHAN

S.B. Criminal Misc. Petition No. 802/99

Decided On: 04.02.2000

 Draupadi Devi alias Maya Sippi Vs.  The State of Rajasthan

Hon'ble Judges/Coram:
J.C. Verma, J.




1. In the present Criminal Misc. petition the only point involved is whet her the petitioners Draupadi Devi @ Smt. Maya Sippi widow of late Vijay Sippi and Shri Vishal Jadeja S/o Pream, earlier husband of Smt. Draupadi Devi can be held criminally liable for the alleged criminal action of Shri Vijay Sippi or the firm M/s. Sippi Films, when admittedly said two petitioners are neither partners of the firm M/s. Sippi Films, nor were falling under any of the necessary ingredients of Sec. 138 and 141 of the Negotiable Instruments Act (herein after referred to 'the Act'), but still on the complaint filled by respondent No. 2 Sunil Mittal, Director of Mittal Capital India Ltd., the cognizance had been taken against the two petitioners as well for the dishonour of the cheque issued by late Vijay Sippi on behalf of M/s. Sippi Films in favour of the M/s. Mittal Capital India Ltd., for an amount of Rs. 5 lacs; the cheque number is 256154 dated 31.3.97. At the time when the cheque was issued there were only two partners of M/s. Sippi films namely Mr. Vijay Sippi and his mother Mrs. Mohini G. Sippi. Mr. Vijay Sippi dated on 17.4.1998.

2. The cheque in question was presented to bankers after the death of said Mr. Vijay Sippi, that is. in August, 1998, to the Bank. Oriental Bank of Commerce. Ajmer. The complainant was informed on 15.9.98 that the cheque cannot be encashed for the reason that money has not been arranged for. On 24.9.98, the notice was scoot to petitioners, copy of which is attached with the petition as Annexure-2. On 31.10.98, the petitioners replied to the notice saying that they were neither the signatories' to the cheque, nor partners in the firm M/s. Sippi Films, and therefore, no liability could be foisted on the petitioners only because of the reason that the petitioner No. i happened to be a wife and the petitioner Mo. 2 a step son of I he signatory of the cheque.

3. The complaint was Hide under Sec. 138 and 141 of the Act. The statement of complainant Mr. Sunil Mital was also recorded. The cognizance was taken by learned Judicial Magistrate No. 1, Ajmer vide order dated 11.11.98. The petitioners moved an application, for recalling of the cognizance order, which was dismissed vide order dated 2.4.99. The petitioners filed a revision petition before the Revisional Court i.e. Sessions Judge Ajmer, which was also dismissed on 17.8.99; Hence the present petition under Section 482 Cr. P.C. for quashing of the proceedings against the petitioners-has been preferred.

4. The Registrar of Finns had also produced a certificate Annexure-5, now attached with the petition, which was a document furnished by the Bank before the Sessions Judge as well proving that Smt. Draupadi Devi was never a partner of the firm M/s. Sippi Films and so was the case in regard to Vishal Jadeja. It is settled law that under the partnership Act, no one can be inducted as partner without the consent of all the partners and none of the petitioners had been formerly inducted as partners, which fact is not denied even by the respondent-complainant. As regards to Vishal Jadeja. he is being involved in the instant case only because of the reason that once on 4.1.95, about two years before issuance of the bounced cheque, this Vishal Jadeja Step son of Vijay Sippi had been given a authorisation letter by Mr. Vijay Sippi to operate the account in question for some lime. But it is not disputed that this Vishal Jadeja was never incharge' or "responsible for the conduct of the firm'. Therefore, once the authorisation letter had been given to Mr. Vishal Jadeja, about three years before the cause of action had arisen. am it be said that he can be liable for criminal action of a dead partner of the firm, only for the reason that three years back he was holding the authority letter on behalf of one of the dead, partner to operate the same account.

5. Obviously, it is unknown to the law that legal heirs of the accused are to face the trial for the alleged criminal act of the deceased. Had any of the petitioners been a partner at the time when the cheque was issued, there would have been no difficulty for holding them liable for the offence under Sec. 138 or 141 of the Act. None of the petitioners was a partner of the firm and even had not been inducted as partner after the death of Mr. Vijay Sippi as well; in such situation can it be said that they would still be liable for a criminal action under lite provisions of the Act for the action of the firm, of which neither of the petitioners admittedly was a partner or is a partner or is incharge of the firm? Obviously the answer is No.

6. The record was called for. It is mentioned in the complaint that the complainant has no knowledge whether the present petitioners, who were impleaded as accused No. 6 & 7, were partners of the firm or not.

7. With the complaint the deed of partnership was also produced. The deed of partnership shows that there were only two partners that is Mr. Vijay Sippi and Smt. Mohini G. Sippi. On the file of trial court, the record of Registrar of Firms had been produced by parties. No where any of the petitioners stands liked with the firm in any manner.

8. The record of Revisional Court, i.e. Sessions Judge, Ajmer has also bee produced. Learned Sessions Judge had called for the record from the Bank as well relating to M/s. Sippi Films from Bombay. In the bank record, the only names of Mrs. Mohini G. Sippi and Mr. Vijay Sippi has been mentioned as partners according to papers submitted by the firm. The authority letter dated 4.1.95 has also been produced by the Bank to show that Mr. Vishal Jadeja was authorised by one of the partner Mr. Vijay Sippi on his behalf to operate the bank account till authority is revoked. However, in January, 1996 the another person was also given authority to operate the bank account.

9. Even the Sessions Judge, in his order passed in revision petition, had observed that the bank record was wiled where it was mentioned that Mr. Vijay Sippi and Mohini G. Sippi were partners and on 4.1.9.S (lie authority ICIICT had been given to petitioner No. 1 to operate the bunk account. Learned Sessions Judge had observed that in 1995 while opening the bank account by the firm, the firm had mentioned in agreement that after their death, their legal heirs are also bound by their actions. Learned Sessions Judge had observed dial the legal heirs are liable for the return of loans taken by deceased partner. and therefore, they are liable for criminal action as well for being criminally proceeded. In my opinion, learned Sessions Judge had error in observing so. The finding of the learned Sessions Judge, to the effect that legal heirs are liable for the criminal action of deceased partner is erroneous on the face of it and it cannot be sustained. The criminal liability is a personal liability. No partner can bound its legal heirs, who are not partners of the firm, for his criminal action: if such proposition is accepted it would lead to absurd consequences.

10. Counsel for respondents states that even a minor or a infant child can be held liable for criminal action of a deceased partner being his legal heir. To my mind such a submission of counsel for respondent is to be rejected straightway in view of the science law that no other person than the criminal himself can be punished or tried in courts of law for the offence committed by said person.

11. Faced with the situation, counsel for respondents states for all the reason that the revision had also been availed of by petitioner, and therefore, in such situation the Misc. petition under Sec. 482 Cr. P.C. cannot be maintained as it will amount to second revision and for such preposition, counsel for respondent relies on MANU/SC/0214/1993 : AIR 1993 SC 1361. Dhannpal and Others v. Smt. Ranieshri and Others, 1995 Cr.LR SC 195. (sic) Arali Raj v. Anjali Rai & Ors.; MANU/SC/0726/1995 : 1995 (4) SCC 41. Ganesh Narayan Hegde v. S. Bangarappa and Others, and also submits that the High Court should not act as a second Revision, it Court and cannot go into the merits of the case. Counsel for respondent wants to submit that if the complaint has averred or slated in statements that the petitioners are also one of the partners, when admittedly they are not so, the record should be ignored and his statement should be accepted at (his state. Such assertion made by counsel for respondent is to be rejected, for the reason that admittedly the offence has not been committed by any of the petitioners, who were neither partners of the firm at any time and are not the partners even now and were never incharge of the office of the firm, which now stand admitted.

12. Counsel for respondent also relics on 1995 Company cases 593, Habibnnisa Akhtar and Another v. S.S. Industries and Enterprises Ltd; 1997 Com Cases 88 page 344, Saj Flight Services (P) Ltd. v. P.T. Gopala, for the preposition that for the action of the find or for the action of Managing Director, on behalf of the firm, all partners are liable under Sec. 138 and 141 of the Act. There is not dispute to such preposition but admittedly i n the present case none of the petitioners was a partner or concerned with the firm at the time of execution of the cheque and even thereafter.

13. In reply to abovesaid objections, counsel for petitioner has relied on a full bench judgment of this Court in the case of Kana Ram v. State of Raj. 1994 RCC 8. wherein it was held that Sec. 397(3) Cr.P.C. does not limit or affect inherent powers of High Court under Sec. 482 Cr.P.C. and these can be exercised for any of the purposes specifically mentioned in Sec. 482 Cr.P.C.

14. In case of Ramesh Chand and Others v. State of Rajasthan, 1990 RCC 23. it was held that the inherent powers under Sec. 482 Cr.P.C. are to be exercised very sparingly for compelling reasons, when there has been any abuse of the process of law or any glaring injustice.

15. In MANU/SC/0094/1982 : AIR 1983 SC 67, the Hon'ble Supreme Court had held that since there was not a whisper of evidence, nor a shred of evidence to show that there WAS any act committed by the director of the company, which could make him vicariously liable (bran offence, the said directors could not be prosecuted for criminal offence.

16. In M/s Pepsi Foods v. Spl. Judicial Magistrate. JT 1997(8) SC 701 it was held that there was no prima-facie evidence against the persons and the proceedings cannot continue.

17. Counsel for petitioner also relies on 1996(1) Crimes (P&H) 412: 1998 Cri.LJ 4521 (A.P.); 1998 Cri.LJ 4383 (Del) and 1997 CriLJ 3616 (A.R).

18. In view of the law laid down by Hon'ble Supreme Court in case of State of Haryana v. Bhajan Lal MANU/SC/0115/1992 : AIR 1992 SC 604. wherein it has been held that taking the FIR to be true even that if no prima-facie case is made out against the accused person then the FIR should be quashed by the High Court. The similar view has been taken in case of Rupan Deol Bajaj v. K.P.S. Gill MANU/SC/0080/1996 : 1995 (6) SCC 194 and in Ashok Chaturvedi & Ors. v. Shitual H. Chanchani MANU/SC/0511/1998 : 1998 (7) SCC 698.

19. In view of the above narration of facts and law, I am of the opinion that if is a case where there is complete vacuum in linking either of the petitioners with the offence under Sec. 138 or 141 of the Act. Until and unless, it is shown on evidence that either of the petitioners was connected with the M/s Sippi Films or with the affairs of the firm at the lime of commission of offence or thereafter or was a partner falling under the mischief under Sec. 141 of the Act; the present petitioners could not be proceeded with and the order of taking cognizance by Judicial Magistrate and the order passed by Revisional Court cannot be sustained in the eyes of law. The order passed in revision petition that because of the reason that legal heirs are responsible for certain acts of their predecessor and they should also be held liable for criminal action for facing trial and to undergo punishment under the offence is, on the face of it erroneous in law in the fads of present Case.

20. The impugned order passed by learned Special Judge SC/ST (Prevention of Atrocities) Act, Ajmer in Criminal revision No. 19/99 dated 17.8.99 and the orders passed by learned Judicial Magistrate No. 1, Ajmer dated 11.11.98 confirmed by the order dated 2.4.99 qua the petitioners are quashed and set-aside and it is held that no cognizance could have been taken against the petitioners. The proceedings against the petitioners be quashed.

21. With the above observations, the Misc. petition is allowed No. costs.




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