SAROJBEN ASHWINKUMAR SHAH versus STATE OF GUJARAT AND ANR.

Citation: [2011] 9 S.C.R. 1138 · Decided: 10-08-2011 · Supreme Court of India · Bench: AFTAB ALAM · Disposal: Appeal(s) allowed
Cited by 1 judgment(s) · see the full citation network in Lexace
Open in Lexace · Ask the AI about this case
Judgment (excerpt)

[2011] 9 S.C.R. 1138 
A 
SAROJBEN ASHWINKUMAR SHAH 
<" 
v. 
STATE OF GUJARAT AND ANR. 
(Criminal Appeal No. 1554-1557 of 2011) 
B 
AUGUST 10, 2011 
[AFTAB ALAM AND R.M. LODHA, JJ.] 
Code of Criminal Procedure, 1973 - s. 319 - Power to 
proceed against other persons appearing to be guilty of 
c offence - On facts, complaint uls. 138 Negotiable Instruments 
Act against a firm and its partners - Subsequently, application 
u/s. 319 for joining appellant and one other person as co-
accused in the complaint, on basis of document (copy of 
registration of the firm) whereby the proposed accused were 
D shown as partners of the firm - Direction by Judicial 
Magistrate to join them as co-accused - Said order upheld 
by the High Court - On appeal, held: High Court failed to 
consider whether the Magistrate had addressed to the 
essential aspects before invoking power u/s. 319 - A/so the 
E High Court did not advert to the question whether or not filing 
of copy of registration of the firm by its partners would be 
covered by expression in the course of inquiry into or trial and 
evidence occurring ins. 319 which would also show that the 
appellant committed the offence - With regard to the criminal 
F liability of a partner in the firm, there has to be evidence that 
when the offence was committed, the partner was in-charge 
of and was responsible to the firm for the conduct of the 
business of the firm - High Court did not consider these 
aspects -· Thus, matter remitted back to the High Court for 
G reconsideration - Negotiable Instrument Act, 1881 - ss. 138 
and 141. 
... 
Code of Criminal Procedure, 1973 - s. 319 - Power 
under - Ambit and scope of - Explained. 
H 
1138 
SAROJBEN ASHWINKUMAR SHAH v. STATE OF 1139 
GUJARAT' AND ANR. 
~ 
-' 
Respondent No. 2 filed a complaint against a A 
partnership firm and its two partners-accused no. 2 and 
3, before the Judicial Magistrate, alleging commission of 
offence under Section 138 of the Negotiable Instruments 
Act, 1881 and under Section 114 of the Penal Code, 1860. 
-· 
Subsequently, the complainants filed an application 
B 
under Section 319 of the Code of Criminal Procedure, 
1973 for joining two other partners • 'PL' and appellant, 
.~ 
as accused no. 4 and accused no. 5 respectively. It was 
averred that accused nos. 2 and 3 submitted a copy of 
the registration of the firm wherein proposed accused no. c 
4 and 5 were shown as partners of the firm. The Judicial 
Magistrate directed that 'PL' and the appellant be joined 
as accused no. 4 and 5. The High Court upheld the order. 
Thus, the appellant filed the instant appeal. 
Allowing the appeals, the Court 
D 
HELD: It would transpire from the order of the High 
Court that after noticing the provisions contained in 
Section 319 Cr.P .C. and its scope, the High Court 
proceeded to hold that the order of the Magistrate did not E 
call for any interference. The High Court, however, failed 
to consider whether Magistrate has addressed to the 
essential aspects before invoking his power under 
Section 319 of the Code. Moreover, the High Court did not 
advert to the question whether or not filing of copy of F 
registration of the firm by Accused Nos. 2 and 3 would 
' 
be covered by expressions 'in the c.ourse of any inquiry 
into or trial' and 'evidence' occurring in Section 319 of the 
Code and also the aspect as to whether such document 
could be treated as an evidence to show that !he 
G 
appellant (newly added accused) has committed an 
_.> 
offence of cheating under Section 420 IPC. As regards 
the criminal liability of a partner in the firm, in light of the 
provisions contained in Section 141 of the Act, there has 
to be evidence that at the time the offence was 
H 
1140 
SUPREME COURT REPORTS 
[2011] 9 S.C.R. 
A committed, the partner was in-charge of and was 
responsible to the firm for the conduct of the business 
of the firm. A perusal O·f the impugned order would show 
that all these relevant aspects have not been considered 
by the High Court at all and the petitions under Section 
8 482 of the Code were dismissed. As the matter needs to 
be considered by the High Court afresh, the orders of the 
Magistrate is not dealt with on merit lest it may prejudice 
the consideration of the petitions under Section 482 of 
the Code before the High Court. The impugned order is 
C set aside. Criminal Miscellaneous Application are restored 
to the original number for hearing and reconsideration by 
the High Court in accordance with
Excerpt shown. Read the full judgment & AI analysis in Lexace.