For a partner to be held liable under Section 138 of the Negotiable Instruments Act, the firm must also be prosecuted as an accused; otherwise, the individual cannot be convicted.

ORDER

1. This revision petition is filed by revision petitioner / accused under Section 397 and 401 of Criminal Procedure Code, 1973 (hereinafter referred to as 'the Code' for short) challenging the judgment of conviction and order of sentence passed by XIX ACMM Bangalore in C.C.No.7250/2009 dated 08.04.2014 and confirmed by the XLVI Additional City Civil and Sessions Judge, Bangalore in Crl.A.No.430/2014 vide judgment dated 19.09.2015.

2. For the sake of convenience, the parties herein are referred with original ranks occupied by them before the trial Court.

3. The brief factual matrix leading to the case are as under:

It is the case of the complainant that accused is carrying catering business in the name of 'Icon Hospitalities'. The complainant was carrying business of distribution of LPG cylinders of Indian Oil Corporation and accused is the customer of complainant. That accused used to purchase LPG commercial gas cylinders on credit basis from time to time and the complainant had supplied LPG cooking gas cylinders worth of Rs.16,46,950/- to the accused. It is the contention of the complainant that the accused in order to repay the outstanding amount had issued five cheques for a sum of Rs.5,00,000/-, Rs.2,00,000/-, Rs.3,00,000/-, Rs.1,00,000/-and Rs.1,75,000/-, total amounting to Rs.12,75,000/-, all are drawn on South Indian Bank, Christ College Extension Counter, Bangalore. When the cheques were presented, they were dishonored and the cheque of Rs.5,00,000/- was returned as 'account closed', while the other four cheques were returned with an endorsement 'exceeds arrangements'. Since, the accused has failed to discharge the liability covered under the cheques, the complainant has issued a legal notice through his counsel on 01.09.2008 demanding the cheque amount and the notice was duly served on the accused. The accused has failed to make payment and hence, the complainant has lodged a complaint under Section 200 of the Code for the offence under Section 138 of Negotiable Instruments Act, 1881 ( hereinafter referred to as 'the Act' for short).

4. The learned Magistrate has taken cognizance of the offence and issued process. The accused has appeared through his counsel and was enlarged on bail. The prosecution papers were also furnished to him as contemplated under Section 207 of the Code. The accusation was read over and explained to the accused and he denied the same.

5. The partner of the complainant is examined as PW1 and he placed reliance on 133 documents viz., Ex.P1 to Ex.P133. After conclusion of the evidence of complainant, the statement of accused under Section 313 of the Code is recorded to enable him to explain the incriminating evidence appearing against him in the case of the complainant. The case of accused is of total denial.

6. The accused was got examined himself as DW1 and he has also placed reliance on three documents marked at Ex.D1 to Ex.D3.

7. After hearing the arguments and after appreciating the oral as well as documentary evidence, the learned Magistrate has convicted the accused by imposing a fine of Rs.14 Lakhs for the offence under Section 138 of the Act with default sentence of six months.

8. Being aggrieved by this judgment of conviction and order of sentence, accused has filed an appeal before XLV Additional City Civil and Sessions Judge, Bangalore in Crl.A.No.430/2014. The learned Sessions Judge after re-appreciating oral and documentary evidence has dismissed the appeal. Being aggrieved by these concurrent findings, the accused is before this court by way of revision.

9. Heard the arguments advanced by the learned counsel for the revision petitioner / accused and the learned counsel for respondent / complainant. Perused the records.

10. The learned counsel for revision petitioner would contend that the transaction was between the complainant and the firm, but the notice was issued to the accused in his personal capacity. He would further assert that the firm is not arrayed as an accused and the total