ORDER :

U. Durga Prasad Rao, J.

1. In this petition filed under Section 482 of Cr.P.C., petitioners/A2 and A5 implore to quash the proceedings against them in CC No. 38 of 2013 on the file of Judicial First Class Magistrate, Dharmavaram, Ananthapuram District, which was taken cognizance for the offences under Sections 403, 406, 409 and 420 read with Section 34 of IPC.

2. The private complaint filed by the 2nd respondent/complainant, was forwarded by the learned Judicial First Class Magistrate, Dharmavaram to the Police of Dharmavaram Town Police Station and it was registered as case in Crime No. 90/2010 against A1 to A5 and investigated into. The allegations in the complaint are that the complainant is a Silk Saree Merchant at Dharmavaram, doing business under the name and style "Dasari Rama Dasu and Sons". All the accused are family members and they are partners in M/s. P. Neelakantam and Sons Cloth Merchants, Karimnagar. It is alleged that the accused used to purchase silk sarees on credit basis. On 30.5.2007 A1 visited Dharmavaram and purchased silk sarees under Invoice No. 6 for Rs. 1,31,450/- on behalf of the partners and took the sarees promising that the bill amount would be paid within one month and thus induced the complainant for delivery of the goods. However, the accused failed to repay the amount as promised. The complainant personally went to Karimnagar on number of times and requested them for the repayment of the amount, but accused have postponed the payment on one pretext or other. The complainant recently came to know that the accused were trying to winding up their shop and they have transported stock in the shop to a different place. On knowing the said fact, the complainant immediately rushed to Karimnagar and requested the accused for payment of the amount but the accused failed to pay the amount. Thus the accused have, with a dishonest intention and by playing fraud upon the complainant, cheated him. The police after investigation, laid charge-sheet and learned Magistrate had taken cognizance of the same for the offences under Sections 403, 406, 409 and 420 read with Section 34 of IPC against A1 to A5.

Hence, the instant petition.

3. Though, notice was served on respondent No. 2/complainant there is no representation. Heard learned Counsel for petitioners.

4. Severely fulminating the Trial Court's taking cognizance of the case, learned Counsel for petitioners, would firstly argue that the Trial Court committed a serious blunder in taking cognizance of the offences against the petitioners/A2 and A5 as they have absolutely nothing to do with the business conducted by A1. On the other hand, A1 alone was conducting the business and in fact even as per the complaint allegations it was A1 alone went to Dharmavaram and allegedly received sarees on credit basis from the complainant. The complainant has not filed any record showing that the petitioners are partners in M/s. P. Neelakantam and Sons Cloth Merchants, Karimnagar and that they were the incharge and responsible to the Firm for conduct of the business of the firm during the relevant period of offence. Learned Counsel would submit that it is trite law that without establishing that the petitioners are active partners in the accused Firm the complainant cannot maintain criminal proceedings against them. On this principle, he place reliance on Katta Sujatha v. Fertilizers and Chemicals Travancore Limited and another, (2002) 7 SCC 655.

5. Secondly, learned Counsel would argue that even assuming for argument sake that the petitioners are active partners in the partnership firm of the accused, nevertheless, the criminal complaint is not maintainable against the individual partners i.e., A1 to A5 without arraying partnership firm as one of the accused. In-expatiation he would submit, as per complaint averments, A1 took sarees on credit on behalf of their partnership firm viz., M/s. P. Neelakantam and Sons. In that view, if at all any offence is committed, that should