Rallis India Ltd. Vs.
Poduru Vidya Bhusan & Ors.
J U D G M E N T
Deepak Verma, J.
and the connected matters arise out of the order dated 27.07.2007 in exercise
of the jurisdiction conferred under Section 482 of the Code of Criminal Procedure
[for short, 'Cr.P.C.'], passed by learned Single Judge of the High Court of Judicature
of Andhra Pradesh at Hyderabad in Criminal Petitions No. 3085 of 2007, 3082 of
2007 and 3084 of 2007 all titled Poduru Vidya Bhushan and Others Vs. Rallis India
Ltd. and Another, Crl. A. @ SLP(Crl.)No.1874 of 2008 etc. .... (Contd.) whereby
and whereunder Accused No. 4, 6 and 7 (arraigned as Respondents Nos. 1, 2 and 3
herein) have been discharged of the offences contained under Sections 138 and
141 of the Negotiable Instruments Act, 1881 (hereinafter shall be referred to
the sake of convenience, facts mentioned in SLP (Crl.) No. 1874 of 2008 are
taken into consideration.
as Complainant filed a criminal complaint before the Chief Judicial Magistrate,
Gautam Budh Nagar, Noida (U.P.) on 23.7.2004, under Sections 138 and 141 of the
Act. It was alleged in the said complaint that cheques bearing nos.382874 and
382875 dated 31.03.2004 for Rs.15,00,000/- each drawn on Union Bank of India, Vijaywada
Main Branch were issued by the accused persons. The said cheques, when presented
to their banker, were returned as unpaid vide Cheques Return Advices dated 29.05.2004,
with the remarks, 'Payment stopped by Drawer'. In the said complaint, the following
specific plea is raised by the Appellant: "That the Accused No. 1 is a
partnership firm and Accused No. 2 to are partners thereof and Accused No. 3 is
signatory of the impugned cheques and all partners are looking after day to day
affairs of the accused firm and thus the liability as raised by them is joint
may be pertinent to mention here that the Appellant herein had filed substantially
similar complaints before the Criminal Courts of competent Jurisdiction at
Chandigarh, Vijayawada and Jammu & Kashmir as well. The partnership firm M/s
Sri Lakshmi Agency was therefore, constrained to file T.P. (Crl.) Nos. 161-171 of
2005, which came to beCrl. A. @ SLP(Crl.)No.1874 of 2008 etc. .... (Contd.) disposed
of by this Court on 03.03.2006 and all criminal cases (excluding those pending
in the State of Jammu & Kashmir) filed by Appellant against Respondents
were directed to be tried by Competent Criminal Court at Hyderabad as a series of
composite criminal complaints. Consequently all the complaints are now pending
before XIV Additional Chief Metropolitan Magistrate, Nampally, Hyderabad, for disposal
in accordance with law. The Respondents herein arrayed as Accused Nos. 4, 6 and
7 in the said complaints thereafter filed applications in the High Court of
Judicature of Andhra Pradesh at Hyderabad under Section 482 of the Cr.P.C. for
was, inter alia, contended by the Respondents before the High Court as under : "That
the aforesaid complaint depicted the applicants as the partners of M/s Sri
Lakshmi Agencies. That the aforesaid averments is a false one. Particularly when
the complainant M/s Rallis India Ltd. was fully aware that the applicants had severed
their connections with M/s Lakshmi agencies much prior to the execution of the
Memorandum of Understanding dated 31.03.2004 and also the issuance of the
dishonoured cheques on 31.03.2004." The learned Single Judge of the High Court
after perusal of the record and hearing the parties found it fit and proper to
discharge the Respondents. Hence this Appeal.
have, accordingly, heard learned counsel, Mr. Ajay Dahiya for Appellant and Mr.
G.V.R. Choudary, for Respondents at length and perused the record.
the outset, learned counsel appearing for Appellant contended that in the light
of the aforesaid averments having been made categorically in the original
complaints, no case was made out for discharge of the Respondents. It was also contended
that RespondentsCrl. A. @ SLP(Crl.)No.1874 of 2008 etc. .... (Contd.) - 4 - have
denied their vicarious liability for the offences under Section 138/141 of the
Act, on the ground that they had retired from the partnership firm in
2001/2002, i.e., much prior to the issuance of the cheques in question in 2004.
It is further contended by the learned counsel for the Appellant that the said
denial cannot be accepted as it would be a matter of evidence to be considered
by the Trial Court. Even the question whether or not they would be responsible
for the impugned liabilities would be required to be answered only after the parties
go to trial as it is disputed question as to when the Respondents had actually
retired from the partnership firm, before the issuance of dishonoured cheques.
the other hand, learned Counsel appearing for Respondents strenuously contended
that the Appellant had failed to impute criminal liability upon the Respondents
specifically, which is a matter of record and therefore, at the very threshold,
High Court was justified in discharging them rather than directing them to face
the Criminal prosecution unnecessarily. According to them, in this view of the matter,
no interference is called for against the impugned order and Appeals deserve to
analyze the case before us in proper perspective, it is necessary to scrutinize
all the Criminal Complaints one by one. On perusal of the complaints, we observe
that the specific averment of vicarious criminal liability as mandated by the
three Judge Bench of this Court in the case of S.M.S. Pharmaceuticals Limited Vs.
Neeta Bhalla and Another, reported in 2005 (8) SCC 89, is contained in them in
the form mentioned in Para 4 hereinabove.Crl. A. @ SLP(Crl.)No.1874 of 2008 etc.
in the light of the aforesaid averments as found by us in the Criminal
Complaint, we are of the considered opinion that sufficient averments have been
made against the Respondents that they were the partners of the firm, at the
relevant point of time and were looking after day to day affairs of the
partnership firm. This averment has been specifically mentioned by the Appellant
in the complaint even though denied by the Respondents but the burden of proof
that at the relevant point of time they were not the partners, lies
specifically on them. This onus is required to be discharged by them by leading
evidence and unless it is so proved, in accordance with law, in our opinion, they
cannot be discharged of their liability. Consequently, High Court committed an error
in discharging them. Also, at the cost of repetition, by virtue of their own submissions
before the High Court (reproduced in Para above), the Respondents have admitted
the fact that the Appellant had referred to them in their capacity as partners who
were incharge of the affairs of the firm in the initial complaints. The
question as to whether or not they were partners in the firm as on 31.03.2004,
is one of fact, which has to be established in trial. The initial burden by way
of averment in the complaint has been made by the Appellant.
primary responsibility of the complainant is to make specific averments in the complaint
so as to make the accused vicariously liable. For fastening the criminal liability,
there is no legal requirement for the complainant to show that the accused partner
of the firm was aware about each and every transaction. On the other hand, proviso
to Section 141 of the Act clearly lays down that if the accused is able to
prove to the satisfaction of theCrl. A. @ SLP(Crl.)No.1874 of 2008 etc. ....
(Contd.) Court that the offence was committed without his knowledge or he had exercised
due diligence to prevent the commission of such offence, he will not be liable
of punishment. Needless to say, final judgment and order would depend on the evidence
adduced. Criminal liability is attracted only on those, who at the time of
commission of the offence, were in charge of and were responsible for the conduct
of the business of the firm. But vicarious criminal liability can be inferred against
the partners of a firm when it is specifically averred in the complaint about
the status of the partners "qua" the firm. This would make them liable
to face the prosecution but it does not lead to automatic conviction. Hence,
they are not adversely prejudiced - if they are eventually found to be not
guilty, as a necessary consequence thereof would be acquitted.
the threshold, the High Court should not have interfered with the cognizance of
the complaints having been taken by the trial court. The High Court could not have
discharged the respondents of the said liability at the threshold. Unless
parties are given opportunity to lead evidence, it is not possible to come to
definite conclusion as to what was the date when the earlier partnership was dissolved
and since what date the Respondents ceased to be the partners of the firm.
concluding the present discussion, we also take this opportunity to strike a cautionary
note with regard to the manner in which High Courts ought to exercise their power
to quash criminal proceedings when such proceeding is related to offences committed
by companies. The world of commercial transactions contains numerousCrl. A. @
SLP(Crl.)No.1874 of 2008 etc. .... (Contd.) - 7 - unique intricacies, many of
which are yet to be statutorily regulated. More particularly, the principle
laid down in Section 141 of the Act (which is pari materia with identical
sections in other Acts like the Food Safety and Standards Act, the erstwhile Prevention
of Food Adulteration Act etc. etc.) is susceptible to abuse by unscrupulous companies
to the detriment of unsuspecting third parties. In the present case, there are
several disputed facts involved - for instance, the date when the partnership
came into being, who were the initial partners, if and when the Respondents had
actually retired from the partnership firm etc.
speaking, the ratio of the SMS Pharmaceuticals (supra) can be followed only, after
the factum that accused were the Directors or Partners of a Company or Firm respectively
at the relevant point of time, stands fully established. However, in cases like
the present, where there are allegations and counter-allegations between the parties
regarding the very composition of the firm, the above rule of `specific averment'
must be broadly construed. Indeed, it would be nothing short of a travesty of
justice if the Directors of a Company of Partners of a Firm, who, having duped a
third-party by producing false documents (like a fake partnership deed) or
making false statements (that some others were in charge of the Company/Firm),
at a subsequent stage, seek protection from prosecution on the ground that they
were not directly indicted in the complaint - such a proposition strikes
against one of the very basic tenets of the law of natural justice, which is,
that none shall be allowed to take advantage of his own default. Of course, the
above observation is of a general nature, and has no bearing on the present
case, but nonetheless, the power to Crl. A. @ SLP(Crl.)No.1874 of 2008 etc.
.... (Contd.) quash a criminal proceeding with respect to an offence under
Section 141 of the Act, must be exercised keeping this advisory note and caveat
account of foregoing discussion, we are of the considered opinion that the impugned
judgment and order passed by learned Single Judge exercising the jurisdiction conferred
on him under Section 482 of the Cr.P.C. cannot be sustained in law. The same are
hereby set aside and quashed. The trial court is directed to dispose of the Criminal
complaints filed by Appellant at an early date, after giving opportunity of
hearing to both sides, in accordance with law. However, the Trial Court would
not be influenced by any of the observations made hereinabove and would decide
the matters in accordance with law. The appeals are allowed. Parties to bear
their respective costs.