L. NARASIMHA REDDY, J.

( 1 ) THE petitioner has filed a complaint in CC no. 175 of 2002 on the file of the Judicial First class Magistrate for Excise, Guntur, under section 190 read with Section 200 of the cr. P. C. against the respondents herein alleging that they have committed offences punishable under Sections 138 and 142 of the negotiable Instruments Act (for short the act )- The Trial Court, through orders dated 1-10-2002, dismissed the complaint against A-3, respondent No. 3 herein. The petitioner challenges the same.

( 2 ) HEARD the learned counsel for the petitioner and the learned Public Prosecutor.

( 3 ) SRI S. Niranjan Reddy, learned Counsel for the petitioner, submits that though the cheque was issued by respondent No. 2, the business was being undertaken by respondents 2 and 3 in partnership and, as such, there was no justification for the Trial court in dismissing the complaint against respondent No. 3. He further states that whatever may be the merits of the case, there was no justification for the Trial Court to dismiss the complaint against the 3rd respondent in the absence of any application in that regard.

( 4 ) THE learned Public Prosecutor submits that when the petitioner has described the 1st respondent as a proprietary concern and impleaded the proprietor as the 2nd respondent, the question of there existing any partner, be it, the 3rd respondent or anybody else, does not arise. He submits that it was competent for the Trial Court to dismiss the application against the 3rd respondent even in the absence of an application.

( 5 ) IN the body of the complaint as well as in the cause title, the petitioner had described the 1st respondent as proprietary concern viz. , M/s. Sri Saiteja Fertilizers and Pesticides, represented by its Proprietor Mr. Narra guruva Reddy, The proprietor of the firm is impleaded as respondent No. 2. That being the situation, the 3rd respondent is impleaded as "de facto Partner". It is a matter of common knowledge as well as settled principle of law that a proprietary concern does not have any partners. The partnership and proprietary concern do not go together and they are rather mutually exclusive.

( 6 ) THE contention of the learned Counsel for the petitioner that respondents 2 and 3 were doing business in partnership cannot be accepted. In the complaint, it is stated inter alia as under:"while so, the 2nd accused, who is the proprietor of 1st accused firm approached the complainant and sought for supply of pesticides on credit. Having considered the representation made by the 2nd accused on behalf of 1st accused, the complainant herein started despatching pesticides to the accused on credit by opening a khata with the complainant. While so, the 3rd accused who is a de facto partner with the 2nd accused and who has been actively engaged in day-to-day administration of the business is also vested interest in the 1st accused Firm. "a cursory look at the said portion in the complaint reveals that it was the 2nd respondent who approached the petitioner for supply of fertilizers and it was he who has given the cheque in question. That being the situation, there was no justification to include the 3rd respondent in the complaint.

( 7 ) THE allegation that the 3rd respondent is actively engaged in the day-to-day business of the 2nd respondent cannot constitute any i basis to hold the 3rd respondent liable. The learned counsel for the petitioner places reliance upon Section 141 of the Act, particularly, Explanation (a), in support of his contention that apart from the Companies act and Partnerships constituted under the partnership Act, Association of Individuals also come within the definition of company and that being the situation, every person who, at the time of offence, was in-charge and was responsible to the Company for conduct of the business, shall be deemed to be guilty of the offence. Section 141 of the Act reads as under:"section 141. Offences by Companies:- (1) If the pers

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