A partnership firm cannot be individually liable under Section 138 of the N.I. Act without including all partners in the complaint; liability is joint and several.

ORDER :

1. Heard Sri. Shriprasad J. Joshi, learned counsel for Sri. R.C. Patil, learned counsel for the petitioner-accused and Sri. Sachidanand B. Patil, learned counsel along with Sri. Bunty Rajkumar Kapahi, learned counsel for the respondent-complainant.

2. The accused in C.C.No.1688/2007 and C.C.No.1214/2010 on the file of III Additional Civil Judge and J.M.F.C., at Belagavi, (for short, 'the trial Court') is before this Court challenging the order of conviction dated 29.05.2018 and common order dated 01.06.2019 in Criminal Appeal Nos.226/2018 and 227/2018 on the file of IV Additional District and Sessions Judge, Belagavi (for short, 'the appellate Court').

3. The accused approached the complainant for a loan of Rs.2,50,000/- in August 2004 with a promise to repay the same and the same was paid by account withdrawal. Towards repayment of the loan, issued Cheque bearing No.991665 dated 19.04.2007 drawn on ICICI Bank Ltd., Margao Branch in favour of the complainant. Similarly, the accused requested a loan of Rs.2,00,000/- in August 2005 and issued a Cheque bearing No.991664 dated 08.05.2007 drawn on ICICI Bank Ltd., Margao Branch in favour of the complainant. Both cheques, when presented, were returned with a bank endorsement stating 'account closed'. The complainant issued a legal notice. The accused failed to reply to the notice.

4. The complainant preferred complaints under Section 200 of the Code of Criminal Procedure (Cr.P.C). In support of her case, the complainant examined herself as PW.1 and marked Exhibits P1 to P5 and P1 to P7. The statement of the accused was recorded under Section 313 of Cr.P.C. The trial Court, under two different judgments, convicted the accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'N.I. Act') and sentenced the accused to pay a fine of Rs.2,55,000/- and Rs.2,05,000/-. In default of payment of the fine amount, the accused would undergo imprisonment for a period of six months.

5. The accused preferred an appeal before the appellate Court in Criminal Appeal Nos.226/2018 and 227/2018 against the order of conviction and penalty. The appellate Court dismissed both the appeals while confirming the order of conviction and sentence.

6. These two appeals arise between the same parties regarding two cheques and a common order by the appellate Court. Hence, heard together and disposed of by this common judgment.

7. Learned counsel for the petitioner-accused submits that the cheques in question have been issued on behalf of the partnership firm. The partnership firm and all the partners of the firm are not made parties. Hence, the complaint against the accused is not maintainable. It is submitted that, as the cheque in question is of the firm, the complaint is not maintainable against one of the partner in his individual capacity. Any liability arising from the proceedings, is jointly and severally on all the partners. Learned counsel submits that if a person, who commits an offence under Section 138 of N.I. Act, is a Company, every person, who at the time the offence was committed, was in charge of the company and was responsible for the conduct of business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. Learned counsel further relying on the Explanation to Section 141 of N.I. Act submits that the term company includes the firm. Hence, all the partners at the time the offence was committed are necessary parties. In support of his submission