A complaint under the Negotiable Instruments Act is not maintainable if the partnership firm is not made a party, as individual partners cannot be liable without arraigning the firm as a principal accused.

ORDER :

SURAJ GOVINDARAJ, J.

Table of Contents

A. Background

B. Submissions of Petitioners

C. Submissions of Respondent

D. Points For Consideration

E. Whether the Sessions Court could exercise review powers under Section 397 of Cr.P.C. in respect of order passed under Section 251 of Cr.P.C?

F. Whether an application under Section 251 of Cr.P.C could also be treated as one of discharge in a summons case?

G. Whether without issuance of notice to a partnership firm, whether registered or unregistered, criminal proceedings under Section 138 could be filed or would it be barred under Section 141 of the N.I. Act?

H. Whether issuance of a notice to one of the partners would amount to service of a valid notice on the firm?

I. Whether separate notices or a single notice with separate demarcation of the firm and the partners is required under Section 138 of the N.I. Act leading to a presumption under Section 141 of N.I. Act?

J. In the event of the partnership firm or the partner not being arraigned as an accused in a complaint filed under Section 138 of N.I. Act, can an application be filed by the applicant to arraign them as party-accused by way of either amendment or by way of an application for impleading?

K. Whether Sections 138 to 141 of the N.I. Act are a complete Code by themselves or reference to the PARTNERSHIP ACT , can be made to attribute criminal liability on the firm and or the partners?

L. In the present case is the order passed by the Revisional Court required to be interfered with?

M. What Order?

A. Background

1. The Petitioner in Crl.P. 9909/2017 is before this Court seeking for the following reliefs:

i. Set aside the Common Order dated 16.11.2017 passed by the LXIX Addl. City Civil & Sessions Judge, Bangalore (CCH-70) in Crl.R.P.No.567/2017, which has set aside the Order dated 6-5-2017 on the Application filed by the Accused under Section 251 of Cr.P.C. passed by the XVI ACMM, Bengaluru, in C.C.No.13850/2016;

ii. Quash the entire proceedings in Crl.RP No.567/2017 on the filed of LXIX Addl. City Civil & Sessions Judge, Bangalore (CCH-70) and consequently direct the learned XVI ACMM, Bengaluru, to proceed with C.C.No.13850/2016 in accordance with law, in the interest of justice and equity.

iii. Pass such other suitable order or orders as this Hon’ble Court deems fit in the admitted facts and circumstances of the case to meet the ends of justice.

2. The Petitioner in Crl.P. 463/2018 is before this Court seeking for the following reliefs:

“Call for the records, and set aside the judgment dated 16.11.2017 passed the LXIX Additional City Civil and Sessions Judge (CCH-70), Bangalore in Crl.R.P.No.566/201, discharging the accused.”

3. The Petitioner had filed a complaint under Section 200 of Cr.P.C. read with Section 138 of Negotiable Instruments Act, 1881 [‘N.I. Act’, for short] against the Respondents in PCR No.5759/2016 which came to be numbered as C.C. No.13850/2016 before the 16th ACMM, Bangalore alleging that the cheque issued by the Respondent had been dishonoured for insufficiency of funds. On appearance, an application under Section 251 of Cr.P.C. came to be filed by Respondent-Accused which came to be dismissed by the Trial Court. Challenging the same, Respondent- Accused filed Crl. Revision Petition under Section 397 of Cr.P.C which came to be numbered as Crl.R.P. No.566 and 567/2017 before the 59th Addl. City Civil and Sessions Judge (69). The Revisional court by way of its order dated 16.11.2017 allowed the revision petition, set-aside the impugned order dated 06.05.2017 and allowed the application under Section 251 Cr.P.C. discharging the Peti