IMPORTANT POINT:
Where cheque issued was dishonoured not on ground that person signing cheque was not partner of petitioner firm but on account of insufficient funds then quashing petition on plea that petitioner firm was not responsible for a cheque issued by Ex-partner was held unsustainable.

V.K. Shrisvastava, J.—Being aggrieved by the Order dated 24-3-2003 passed in Criminal Case No. 1267/2003 by the Chief Judicial Magistrate, Durg, whereby taking cognizance against the petitioners alongwith another co-accused Vinod Mandhana under Section 138 of the Negotiable Instruments Act, 1881, (for short, “the Act”) the petitioners have filed this petition under Section 482 of the Cr. PC , for quashing the said Order and all subsequent proceedings against the petitioners.

2. One partnership firm - Aarti Engineering Company, was constituted on 1-4-1994 comprising partners namely Kanhaiyalal Mandhana, Vinod Mand-hana and Smt. Suman Mandhana for carrying the business under the name and style of Aarti Engineering Company. Subsequently, the firm was reconstituted on 1-4-1998 wherein one of the partners namely Vinod Mandhana took retirement and new partner joined in the said firm. Vinod Mandhana issued a cheque dated 1-10-2002 bearing No. 357940 of Canara Bank, Itwari, Nagpur for Rs. 20,00,000/- to be paid to respondent No. 1 - Vijay Dwivedi. The said cheque, on being submitted for encashment, was bounced and returned to respondent No. 1 with letter dated 15-10-2002 issued by the Canara Bank assigning reasons that no sufficient fund was in balance in the account and the payment was stopped by the drawer. Respondent No. 1 issued legal notice on 8-1-2003 to the petitioners and another co-accused Vinod Mandhana and thereafter as no amount has been paid to him, he filed a complaint against all the petitioners and co-accused Vinod Mandhana.

3. Respondent No. 1 in his complaint alleged that petitioner Nos. 2 to 5 and Vinod Mandhana who are the partners of firm M/s. Aarti Engineering Company and are well-known to him, took a loan of Rs. 20,00,000/- for their business and to repay the same Vinod Mandhana one of the partners in the capacity of partner of firm M/s. Aarti Engineering Company, issued a Cheque No. 357940, dated 1-10-2002 of Canara Bank and received back all the documents executed by petitioners and Vinod Mandhana for taking the loan. The said cheque was tendered by respondent No. 1 to his bankers - Bhilai Nagarik Sahakari Bank Ltd., Bhilai Nagar on 10-10-2002, who vide their letter dated 3-1-2003 returned the cheque being bounced. Therefore, respondent No. 1 demanding the amount sent a legal notice to the petitioners and Vinod Mandhana and thereafter when the debt was not .made good, filed a complaint under various Sections of the IPC and also under Section 138 of the said Act, in the Court of Chief Judicial Magistrate, Durg, who after recording necessary evidence, considering complainant and documents, registered a case vide Order dated 24-3-2003 against all the petitioners and Vinod Mandhana under Section 138 of the said Act and thereafter the proceeding in his Court continued.

4. Now, petitioners are challenging the Order vide which case against them has been registered and the criminal proceeding is in progress on the grounds that they have not taken any loan from respondent No. 1 nor on their behalf any cheque has been issued and on the relevant date Mr. Vinod Mandhana was not the partner of the said firm. The legal notice issued by respondent after the period of limitation, violates the mandatory provisions of Section 138 of the said Act. Therefore, neither cognizance against the petitioners for committing any offence under Section 138 of the said Act, was permissible to be taken nor in violation of required legal provision proceeding against them could have been continued.

5. Learned Counsel for both the parties have heard at length.

6. For quashing the criminal proceeding from time to time Hon’ble Supreme Court led various principles and on fulfilling the conditions as laid down by Hon’ble the Supreme Court the person, taking remedy for quashment of criminal proceeding, shall be entitled to have relief prayed for.

7. In State of Haryana and others v. Choudhary Bajanlal and others1, Hon’ble the Apex Court has li