IMPORTANT POINT
A complaint under Section 138 NI Act in which only firm is made an accused without impleading any partner would not be bad in law for that reason.

Dr. S. Muralidhar, J.—This is a petition under Section 482 of the Code of Criminal Procedure, 1973 (‘Cr.P.C.’) seeking the quashing of the proceedings arising out of the complaint case Arjun Kohli v. Alfa Graphics1 pending in the Court of the learned Metropolitan Magistrate (‘MM’), Delhi. The complaint has been filed by the respondent against the petitioner for the offence under Section 138 read with Section 141 of the Negotiable Instruments Act, 1881 (‘NI Act’) and Section 420 of the Indian Penal Code, 1860 (‘I.P.C.’).

2. The only accused person shown in the complaint is as under:

“M/s Alfa Graphics.

7, Neelkanth Apartment,

Gokuldas Pasta Road,

Dadar, East Mumbai

(Through its Partner).”

3. Para 3 of the complaint lists out 20 cheques drawn by the petitioner M/s. Alfa Graphics in favour of the complainant-respondent in the aggregate sum of Rs. 2,26,240,00. It is stated that each of the cheques when presented by the complainant to the Bank for payment was returned dishonoured on account of ‘insufficient funds’.

4. The learned MM directed issuance of summons requiring the appearance of the petitioner before him on 30.5.2006 to face trial for the offence under Section 138, NI Act.

5. The present petition was filed on 24.7.2006. By an order dated 26.7.2006 an interim order was passed exempting the petitioner’s representative from personal appearance subject to appearing through counsel before the Trial Court.

6. Mr. Sandeep Sethi, learned Senior counsel appearing for the petitioner urges two points in support of the prayer quashing of the criminal complaint. The first is that the petitioner is a partnership firm and has been arrayed as an accused without indicating the name of the partner. He submits that in terms of Section 141, NI Act read with the Explanation (a) thereto unless a partner of the firm is also named as an accused and it is specifically that such partner was in-charge of the affairs of the firm and responsible to it for the conduct of its business, no liability whatever can attach to the firm. A reference has also been made to the decision of the Supreme Court in Monaben Ketanbhai Shah v. State of Gujarat.2 Secondly, it is urged that there cannot be one complaint for as many as 20 cheques. A reference has been made to Section 219, Cr.P.C. to content that no person can be charged and tried at one trial for more than three offences of the same kind committed within the space of twelve months.

7. In order to appreciate the first contention a reference may be made to both Sections 138 and 141, N.I. Act which read as under:

“Section 138. Dishonour of cheque for insufficiency, etc. of funds in the account—Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may be extended to two years or with the fine which may extend to twice the amount of the cheque, or with both:

Provided that, nothing contained in this section shall apply unless—

(a) The cheque has been presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;

(b) The payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque within thirty days of the receipt of information by him from the Bank regarding the return of the cheque as unpaid; and

(c)