IMPORTANT POINT
Complaint u/s. 138 of Negotiable Instruments Act against partners of firm suffers no illegality when cheque was issued by a partner towards discharge of liability of the firm but from account of another sister concern of that firm.

V.S. Sirpurkar, J. - This is a criminal revision application at the instance of the original complainant, challenging the revisional order passed by the Additional Sessions Judge, Akola, whereby he quashed the complaint filed by the present applicant/original complainant against respondent Nos. 1 to 3 original accused Nos. 1 to 3.

2. The applicant, in his capacity as a partner of the partnership Firm M/s. Brijlal Makhanlal filed a complainant against respondent Nos. 1 to 3 who, in their turn, are the partners of one partnership firm M/s. J.K. Rungta Agencies. In his complaint, the complainant specifically stated that he was filing the complaint in his capacity as a partner of the firm M/s. Brijlal Makhanlal.

3. It seems that the Jirm M/s. Brijlal Makhanlal had to receive some amount from M/s. J.K. Rungta Agencies. It is the applicant/complainant's case that in lieu of this payment, Shri Jugalkishore Rungta, original accused. No.1, signed six cheques. However, these cheques were from the account of another firm M/s. Onkarmal Rungta and Sons, of which accused No.1 is said to be a partner. These cheques were bounced. They amounted to total amount of Rs.1,64,000/-. Therefore, notice came to be given. This notice was given to all the three partners of M/s. J.K. Rungta Agencies. In this notice, which was served on the three accused persons, the said amount was demanded. On the said demand not being fulfilled and on receiving the alleged three false replies through the Advocate of the accused persons, the complainant proceeded to file the complaint.

4. The Trial Court, on the basis of this complaint, as also on the basis of the xerox copies ofthe documents filed on record and after hearing the complainant, was of the opinion that there was a reason for proceeding against the accused persons and, therefore, issued a process for the offence under section 138 as also under Section 142 of the Negotiable Instruments Act to the accused persons.

5. The accused persons challenged this order, by which the Trial Court had taken cognizance, by way of a revision before the 3rd Additional Sessions Judge, which was registered as Criminal Revision No. 234 of 1990. The Revisional Court below took the view that the complaint was not filed by a proper person and that the proper persons were not made parties to the complainant. It also took the view that there was no notice as contemplated under the provisions given to the accused and in the absence of this notice, the Trial Court could not proceed against the accused persons. In that view ofthe matter, the Revisional Court below allowed the revision.

6. Shri S.C. Mehadia, learned Counsel appearing on behalf of the applicant, strenuously urged that the whole order of the Revisional Court below was patently incorrect in law, as well as on facts. He, first, questioned the legality of the order of the Revisional Court below as, according to him, the order laking-cognizance amounted to an interlocutory order. He secondly contended that the view expressed by the Revisional Court below was wholly incorrect. He pointed out that not only the complaint was filed by the proper person, but it was also filed against the proper persons. As a second leg of his argument, he pointed out that all the formalities of Sections 138 to 148 were completed by the complainant and there was no scope for holding that there was any default in that behalf. The last leg of his argument is that the questions dedded in the revision were unnecessarily rushed with, then, in fact, those questions could be decided only after the proper evidence in that behalf was taken, and the opportunity was given to the parties to prove their respective cases.

7. Shri A.S. Mardikar, learned Counsel appearing on behalf of respondents 1 and 3 original accused Nos. 1 and 3, supporled the order. According to Shri Mardikar, the revision was perfectly maintainable. He reiterated the reasoning by the revisional Court below and relied upon the same. He p