KANUBHAI J. PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) to 3. xxx xxx xxx

(2.) Having considered the contents of the present Revision Application, especially page 13 (Annexure -A) and on perusal of the zerox copy of the cheque in question shown to the Court today by the learned counsel appearing for the petitioners -orig. accused Nos. 2 and 3, it accused Nos. 2 and 3, it appears that for the alleged transaction the cheque in question was signed and issued by the orig. accused No.1 -Bhadresh K. Patel. It is submitted by the petitioners that there is no positive averment or even indirect allegation in the complaint that any one of the present petitioners -orig. accused Nos.2 and/or 3 was in -charge of and was responsible to the firm for the conduct of the business of the firm at the relevant point of time. Of course, there is some strength in the say of respondent No.2 -orig.complainant that both the petitioners were partners of the firm and doing business in the name and style of 'Shrinath Polymers'. The orig. accused No.1 -Bhadresh has signed the cheque in question in the capacity of one of the partners.

(3.) Placing reliance on the decision of Bombay High Court (Panaji Bench), reported in 1994 Company Cases 487, in the case of Rajan, Kinnerkar v. Eric Cordeiro and another, it is argued by Mr. Bhatt that a complaint normally should not be quashed and set aside at an early stage merely on the ground that the accused was not a director of the company at the time when the cheque was presented. The Bombay High Court in the cited decision has held that the complainant must be given an opportunity to lead evidence as to the status of the accused persons shown in the complaint.