PHILIP J. Vs. ASHAPURA MINECHEM LTD
LAWS(BOM)-2016-2-210
HIGH COURT OF BOMBAY
Decided on February 29,2016

Philip J. Appellant
VERSUS
ASHAPURA MINECHEM LTD Respondents

JUDGEMENT

- (1.) In all these four writ petitions, the parties are one and same and they raise a common question of law as to whether a prosectuion launched under section 138 of the Negotiable Instruments Act ("NI Act" for short) against a partner alone without joining the partnership firm can be maintainable. Hence, they are being decided by this common judgment.
(2.) By these petitions, the original accused is challenging the order dated 23rd July 2013 in Criminal Revision Petition No.7 of 2012 passed by the learned Additional Sessions Judge, Mangaon, Dist. Raigad, thereby confirming the order of issue of process dated
(3.) rd January 2012 in Summary Case No. 312 of 2011 passed by the learned Judicial Magistrate, First Class, Shrivardhan under section 138 of the NI Act. 3. Brief facts, relevant for deciding the question of law involved in these petitions, are stated as follows: The partnership firm of the petitioner by name M/s Alamgiris and respondent no.1 ­ a company registered under the Companies Act, 1956 had entered into an Agreement dated 7 th February 2011 to sell iron ore fines by the petitioner to respondent no.1. The final contract was entered into between these two parties on 8th April 2011. As per the Agreement, 1,65,000 MT of iron ore was to be purchased by respondent no.1. The petitioner was to supply iron ore together with trucks and barges for loading the iron ore on board the ship. Under the contract, respondent no.1 paid Rs.11.75 crores to the petitioner towards the purchase price. However, on 25th April 2011 the petitioner informed respondent no.1 company that his partnership firm is unable to provide iron ore. As a consequence of petitioner's failure, respondent no.1 has to pay Rs.3.60 crores as damages of the vessel and Rs.1.50 crores as advance payment made to the petitioner. The petitioner promised to pay Rs.20 crores by way of damages and advance which the petitioner's firm had received. To satisfy this amount, the petitioner's firm issued four cheques of Rs.5 crores each drawn on Bank of India, Tisgaon Branch, Goa. However, when the cheques were presented to the bank, they came to be dishonoured on 24 th August 2011 for want of sufficient funds. Hence, after issuing the requisite mandatory notice, respondent no.1 filed four private criminal cases against the petitioner in respect of the four dishonoured cheques. The learned Magistrate, after being satisfied, issued process against the petitioner for the offence under section 138 of the NI Act. The petitioner challenged the said order of issue of process by filing criminal revisions in the Court of Additional Sessions Judge, Raigad. However, as the revisions came to be dismissed, the petitioner is constrained to approach this Court under Article 227 of the Constitution of India and section 482 of the Code of Criminal Procedure for quashing the order of issue of process.;


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