IMPORTANT POINT
Where allegations in complaint were found to satisfy requirement of Section 141 of Negotiable Instruments Act, it may not be necessary to insist on any further material at threshold stage of taking cognizance of complaint.

JUDGMENT

V. Ramkumar, J.—The common petitioner in all these criminal miscellaneous cases is the common 3rd accused in 8 private complaints filed before the Judicial Magistrate of First Class-1, Ernakulam. The common 2nd respondent in all these Crl. M.Cs. is the common complainant in all the private complaints referred to above. The said complainant is a proprietary concern by name “International Trade Links”, Ernakulam. As per the said private complaints produced as Annexure A1 in each of these cases, the 2nd respondent herein has sought to prosecute a partnership firm by name

“M/s. Star Trading”, Kochi, which is the 1st accused. One Ali and his wife, who is the petitioner herein, are the Managing partner and partner respectively of the said firm and they are arrayed as accused Nos. 2 and 3 respectively. The offence alleged is one punishable under Section 138 of the Negotiable Instruments Act, 1881 (“the Act” for short).

2. In each of the said private complaints, the complainant has inter alia alleged that the 2nd and 3rd accused who are the Managing Partner and Partner respectively of the 1st accused firm are collectively looking after the affairs of the firm, that they are jointly and severally responsible for the business transactions of the said firm and that they are jointly liable for the consequences arising from the dishonour of the 8 cheques in question.

3. On receipt of summons from the Court below, the petitioner herein entered appearance before Court and filed applications requesting the Magistrate to drop the proceedings so far as they relate to the petitioner herein contending that she is not a signatory to the cheques in question and that she has no direct involvement in the business of the 1st accused firm. There is no dispute that when the above applications were filed by the petitioner, the decision of the Hon’ble Supreme Court in K.M. Mathew v. State of Kerala1, entitling the Magistrate to drop the proceedings if the complaint on the face of it does not disclose any offence against the accused notwithstanding the issue of process against the accused, was holding the field. As per separate but identical orders dated 2.9.2004, the learned Magistrate dismissed the applications holding inter alia that the issues cannot be adjudicated until adducing evidence, but reserving the right of the petitioner to urge her objection at a later stage. The relevant portion of the Order of the Magistrate reads as

follows:

“The point—Heard. In fact 1st accused firm is a partnership firm wherein 3rd accused is a partner. According to partnership laws, a partner is the agent of other partner and the firm. Therefore, issuing cheque by a partner on behalf of firm binds other partners as well though not a signatory thereon.

Section 27 of N.I. Act contemplated that issuing negotiable instrument by an agent binds the principal as well.

(4)Moreover sleeping partners is a matter of fact. It requires evidence. Therefore the issues could not be adjudicated until adducing evidence.

(5) In the aforesaid reasons, this petition is disposed of reserving the right of 3rd accused to urge this objection at later stage.”

4. K.M. Mathew’ case (supra) has since been overruled by a Bench of three Judges of the Supreme Court in Adalat Prasad v. Rooplal Jindal2, wherein it was held that once cognizance of an offence has been taken and summons issued , the Magistrate has no power to recall the summons and drop the proceedings and that to do so would amount to review of the earlier order which course is not contemplated by the Code of Criminal Procedure. It was further held that the remedy of the accused in such a case would be to invoke Section 482, Cr.P.C. The said decision has been approved by another Bench of three Judges of The Supreme Court in Subramanium Sethuraman v. State of Maharashtra3 in which a request to reconsider Adalal Prasad’s case was turned down. With these verdicts of the Apex Court, the view taken by a learned Single Judge (Pa