Riya Bawri Etc. Etc. vs Mark Alexander Davidson

2023INSC757 NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(S) 2510-2552 OF 2023 (Arising out of S.L.P. (Crl.) No (s).7483-7525 of 2022)

RIYA BAWRI ETC. … Appellant(s)

VERSUS

MARK ALEXANDER DAVIDSON & ORS. … Respondent(s)

JUDGMENT

Rajesh Bindal, J.

1. Leave granted.

2. A common order1 passed by the High Court of Meghalaya

at Shillong in a bunch of Criminal Petitions2 is under challenge in the

present appeals. Vide aforesaid order, the High Court allowed the

Petitions filed by the respondents herein and quashed the Criminal Signature Not Verified Digitally signed by POOJA SHARMA Date: 2023.08.23 1 16:53:52 IST Reason: Order Dated 14.03.2022.

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Criminal Petition No(s). 35-56 of 2021 & No(s). 74-94 of 2021.

1 Complaints filed by the appellants herein under Section 138 read with

Sections 141 and 142 of the NI Act3 along with Sections 420, 418, 417,

403, 409 and 406 of the IPC4 filed before the Court of Additional Deputy

Commissioner (Judicial), Shillong.

3. Briefly, the facts of the case available on record are that on

11.07.2015, respondent no.35 approached the appellant no.16 to rent

out her property situated at 13th Mile, G.S. Road. Tamulikuchigaon,

Byrnihat, Ri Bhoi District, Meghalaya. According to the agreement, the

property was rented for a consideration of ₹1,45,152/- (Rupees One

Lakh Forty-Five Thousand One Hundred Fifty Two) per month

including taxes. The rent was to be paid every month at Shillong. A

Cheque bearing no. 001422 drawn on HDFC Bank, Kalapahar,

Guwahati Branch was issued on 20.08.2019, by the respondent no. 3 to

the appellant no. 1, for an amount of ₹1,45,152/. The cheque was issued

to discharge the liability for the payment of rent. Between April 2019

and October 2019, the respondent no.3 had issued multiple cheques7

3 Negotiable Instruments Act, 1881 (hereinafter as ‘NI Act’). 4 Indian Penal Code, 1860 (hereinafter as ‘IPC’).

5 Respondent No.3 in the present appeal is Twelve Baskets, a registered firm. 6 Appellant No.1 in the present appeal is Riya Bawri, also the Complainant before the Additional Deputy Commissioner (Judicial), Shillong.

7 Refer to Table mentioned in Para 12 of this judgment.

2 (Total 22 cheques) to the appellants herein for discharging the liability

for the payment of rent for different months. All the cheques were

dishonoured by the bank with a return memo stating the reason therein

as ‘Funds Insufficient.’ Subsequently, the appellant no.1, issued a

written notice dated 09.12.2019 to the respondent no.3 under Section

138 of the NI Act, calling upon the respondent no. 3 to pay the amount

of the cheques to the appellant herein.

4. After expiry of the period of 15 days, the appellant no.1

filed Criminal Complaints8 against the respondents no. 1 to 4 under

Section 138 read with Sections 141 and 142 of the NI Act3 along with

Sections 420, 418, 417, 403, 409 and 406 of the IPC4. Following that,

other appellants, including appellants no. 29, 310 and 411 filed similar

Criminal Complaints12 (Total 22 Complaints) against the respondents.

The learned Judicial Magistrate of the First Class, after perusing the

statement of the complainant, took cognizance of the cases and issued

summons to the respondents herein.

8 Criminal Complaints No.55/2019, 58/2019, 78/2019, 35/2020, 67/2020. 9 Appellant No.2 in the present appeal is Rahat Bawri. 10 Appellant No.3 in the present appeal is Payal Bansal. 11 Appellant No.4 in the present appeal is Rahat Bawri (HUF). 12 Criminal Complaints No.53-54/2019, 56/2019, 59-61/2019, 66/2019, 73/2019, 75-77/2019, 36- 37/2020, 68-71/2020.

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5. Aggrieved by initiation of proceedings in the criminal

complaints, the respondent no.113 and the respondent no.214, filed

petitions under Section 482 of the CrPC15 before the High Court

seeking quashing of the summoning order and the criminal complaints

filed against them. The High Court, after hearing both the parties,

quashed the criminal complaints and set aside the summoning order in

relation to the respondents no.1 and 2. The High Court held that the

complainant/appellant no.1 had failed to produce sufficient evidence

to hold them liable for prosecution.

6. The respondent no. 316 and respondent no.417 didn’t file any

quashing petition seeking quashing of the criminal complaints.

7. The aforesaid order of the High Court is under challenge in

the present appeals.

8. This Court while taking up the Special Leave Petitions on

23.08.2022, did not entertain the same qua the respondent no.2 i.e.,

Sarita Harish Kanchan and dismissed the same. As a result, thereof, the

order passed by the High Court qua the respondent no.2 quashing the

13 Respondent No.1 in the present appeal is Mark Alexander Davidson. 14 Respondent No.2 in the present appeal is Sarita Harish Kanchan. 15 Code of Criminal Procedure, 1973 (hereinafter as ‘Code’). 16 Respondent No. 3 is the firm, wherein Respondent No.4 is one of the Partner. 17 Respondent No.4 in the present appeal is Sachhidanand Kanchan.

4 proceedings against her stands upheld. Notice was issued only to the

respondent no.1, 3 and 4.

9. The learned counsel for the appellants argued that the

respondent no.1 had asserted before the High Court that during the

period when cheques in question were issued, he had already

resigned from the partnership firm, for which a notice was duly issued.

However, the appellants’ argument is that a public notice announcing

the retirement of the respondent no.1 as a partner was released for the

first time on 09.02.2022, subsequent to the trial Court summoning the

respondents. Till that point, there is no evidence on record to indicate

that the respondent no.1 was not a partner of the firm. The Retirement

Deed dated 01.04.2018 placed on record by the respondent no.1 to

support his case is a self-serving document which ought to be proved

during the course of evidence and cannot be accepted as conclusive in

quashing proceedings. Further, learned counsel for the appellant

argued that there exist allegations concerning the respondent no. 1,

indicating his role as partner, being in-charge of and responsible for

the affairs of the firm. Hence, the order passed by the High Court

quashing the complaints filed against the respondent no.1, deserves to

be set aside.

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10. On the other hand, learned counsel for the respondent

no.1 submitted that though, initially his client was a partner in the firm,

however, at the time when the cheques were issued by the respondent

no.3, he had already resigned from the partnership firm vide

Retirement Deed dated 01.04.2018, thus, making him face the trial,

would amount to misuse of the process of law. Consequently, after his

retirement from the firm, the respondent no.1 had nothing to do with

the affairs of the firm. Hence, the respondent no.1, not being the

partner of the firm on the date the issuance of the cheques, cannot be

held liable. The Retirement Deed was prepared and was executed on

01.04.2018. Thereafter, a public notice dated 09.02.2022 was also

issued informing the public in general about his retirement from the

firm. The Retirement Deed executed on 01.04.2018 between the

partners was itself sufficient, of which the High Court had taken

cognizance and quashed the proceedings against the respondent no.1,

saving him from the misuse of the process of law. No special evidence

was required to be lead in that regard.

11. We have heard the learned counsel for the parties and

perused the relevant referred records.

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12. It is a case in which the premises owned by Riya Bawri,

Rahat Bawri and Payal Bansal, was taken on rent by the respondents for

a consideration of ₹1,45,152/- per month (including taxes). To

discharge their liability for payment of the rent, various cheques were

issued in favour of the appellants, the details whereof are as under:

Sr. Cheque Date Amount In favour of No. No. 1. 001412 10.05.2019 ₹ 1,54,037/- Rahat Bawri 2. 001428 25.05.2019 ₹ 94,500/- Rahat Bawri (HUF) 3. 001416 20.06.2019 ₹ 1,54,037/- Riya Bawri 4. 001411 30.04.2019 ₹ 1,54,037/- Payal Bansal 5. 001413 20.05.2019 ₹ 1,54,037/- Riya Bawri 6. 001429 25.06.2019 ₹ 94,500/- Rahat Bawri (HUF) 7. 001415 10.06.2019 ₹ 1,54,037/- Rahat Bawri 8. 001414 30.05.2019 ₹ 1,54,037/- Payal Bansal 9. 001417 30.06.2019 ₹ 1,54,037/- Payal Bansal 10. 001418 10.07.2019 ₹ 1,45,152/- Rahat Bawri 11. 001421 10.08.2019 ₹ 1,45,152/- Rahat Bawri 12. 001430 25.07.2019 ₹ 94,500/- Rahat Bawri (HUF) 13. 001420 30.07.2019 ₹ 1,38,802/- Payal Bansal 14. 001419 20.07.2019 ₹ 1,45,152/- Riya Bawri 15. 001422 20.08.2019 ₹ 1,45,152/- Riya Bawri 16. 001424 10.09.2019 ₹ 1,45,152/- Rahat Bawri 17. 001423 30.08.2019 ₹ 1,38,802/- Payal Bansal 18. 001425 20.09.2019 ₹ 1,45,152/- Riya Bawri 19. 001426 30.09.2019 ₹ 83,765/- Payal Bansal 20. 001433 25.10.2019 ₹ 94,500/- Rahat Bawri (HUF) 21. 001434 15.10.2019 ₹ 2,29,317/- Rahat Bawri (HUF)

7 22. 001432 25.09.2019 ₹ 94,500/- Rahat Bawri (HUF)

13. On presentation for collection to the Bank, the aforesaid

cheques were returned by the Bank, with the remarks ‘Funds

Insufficient’. Immediately, thereafter the appellants issued a notice

dated 09.12.2019 under Section 138 of the NI Act, to which no reply was

given. As the cheques had been issued to discharge the liability for

payment of the rent and the same were dishonoured, complaints were

filed before the Additional Deputy Commissioner (Judicial) at Shillong

under Sections 138, 141 & 142 of the NI Act and under Sections 420, 418,

417, 403, 409 and 406 of IPC.

14. After considering the preliminary evidence led by the

complaints, the trial Court summoned the accused/respondents.18 It

was at this stage that the respondents no.1 and.2 filed petitions before

the High Court praying for quashing of the summoning order and the

complaints filed against them. The High Court vide common impugned

order quashed the complaints and the summoning order against the

respondents no.1 and 2.

18 Mark Alexander Davidson and Sarita Harish Kanchan (proceedings against both of them were dropped by the High Court) along with Twelve Baskets and Sachhidanand Kanchan.

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15. The only issue which is required to be considered in the

present appeals is as to whether the order passed by the High Court

quashing the summoning order and the proceedings against the

respondent no.1 was justified.

16. The plea raised by the respondent no.1 for seeking

quashing of the proceedings before the High Court was that on the

dates19 when the cheques were issued for discharging the liability for

payment of rent for the premises taken by the respondent no.3, he had

already retired from the firm and a Retirement Deed in that regard was

executed on 01.04.2018.

17. It is not in dispute that the premises owned by the

appellants was taken on rent by the respondent no.3 firm. Though

Partnership Deed has not been placed on record before this Court,

however, from para 42 of the impugned order of the High Court it is

evident that the partnership firm consisted of three partners, namely,

Mark Alexander Davidson and Sachhidanand Kanchan and the third

one was not impleaded in any complaints as accused. To discharge the

liability towards the payment of rent, various cheques7 were issued to

19 Refer to Table mentioned in Para 12 of this judgment.

9 the appellants. The cheques, when presented to the Bank, were

dishonoured on account of insufficiency of funds.

18 The specific allegations made against the accused in the

complaint, including the respondent no.1, were that they were in-

charge of and were responsible for the affairs of the respondent no.3

firm, for conduct of the business affairs of the firm. Thus, they were

liable to be proceeded against and punished. The offence has been

committed with the consent and connivance of the accused nos. 2 to 4,

which included the respondent no.1.

19. The High Court had accepted the argument raised by the

respondent no.1 and quashed the summoning order as well as the

complaints against him, accepting the plea that he had retired from the

partnership firm for which a Retirement Deed was already executed on

01.04.2018. In our opinion, the plea taken by the respondent no.1

seeking quashing of the summoning order and the complaints filed

against him was not tenable, for the reason that, it would be a matter of

evidence to be proved before the trial Court, as to whether any

Retirement Deed was issued and a public notice concerning the same

was issued, before the complaints were filed. The fact remains that, a

public notice regarding retirement by the respondent no.1 from the

10 firm was issued on 09.02.2022 i.e., much after the complaints had been

filed and the summoning order had been issued by the trial Court on

05.02.2020. Even the quashing petitions were filed by the respondent

no.1 in October 2021. The public notice was issued few days before

the High Court decided the quashing petition on 14.03.2022. It is not

the case set up by the respondent no.1 that in the Partnership Deed it

is mentioned that he was a sleeping partner in the firm. Under such

circumstances, the Retirement Deed dated 01.04.2018 sought to be

produced by the respondent no.1 for quashing of the summoning order

and the complaints could not be taken on its face value, and treated as

clinching evidence to quash the complaints. It would be a matter of

evidence to be led before the trial Court.

20. It is well settled that the final judgment of the trial Court will

depend on the evidence adduced before it. As there are specific

allegations against the respondent no.1 in the complaint and he was

admittedly a partner in the partnership firm when the rent deed was

executed, he is liable to face prosecution. Powers under Section 482 of

the Code can be exercised by the High Court in case when it comes

across unimpeachable and incontrovertible evidence to indicate that

11 the partner of the firm did not have any concern with the issuance of

cheques. The case in hand is not of that kind.

21. For the reasons mentioned above, we find merit in the

present appeals. The impugned order passed by the High Court

quashing the summoning order and the complaints against the

respondent no.1 are set aside. The complaints filed by the appellants

against the respondent no.1 are revived to be tried by the Court

concerned. The appeals are accordingly allowed.

…..……………..J (HIMA KOHLI)

…………………..J (RAJESH BINDAL)

New Delhi August 23, 2023

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