IMPORTANT POINT
Even without prosecuting firm, Managing Partner in fact concerned with affairs and management of company can individually be prosecuted.

R. Kantha Rao, J. —This appeal is filed by the complainant in CC No.97 of 2000 on the file of the Court of VIII Metropolitan Magistrate for Municipal Cases, Vijayawada whereby and whereunder the accused Nos.1, 3, 4 and 5 i.e., the respondents 1 to 4 herein were acquitted of the offence under Section 138 of Negotiable Instruments Act.

2. The appellant company filed a complaint under Section 138 of Negotiable Instruments Act against the first respondent/A1 firm, Chintala Siva Krishna Prasad (A2), the Managing Partner representing the firm, A3 and A4, the respondents 2 to 4 herein who are the partners of the firm under Section 138 of Negotiable Instruments Act. At the conclusion of the trial, the learned Magistrate convicted A2, the Managing Partner of the accused firm alone and acquitted A1 firm and all the remaining partners who were figured as A3 to A5. The present appeal is filed by the appellant complainant company challenging the acquittal of the accused 3 to 5 i.e., the respondents 1 to 4 herein. On the ground that having convicted the second accused, the Managing Partner of the firm, the learned Magistrate should also have convicted the respondents 1 to 4 and as such the appellant in this appeal seeks to set aside the order of acquittal passed by the Court below in so far as the respondents 1 to 4 are concerned and to convict them for the offence under Section 138 of Negotiable Instruments Act in this appeal by reversing the judgment of the learned Court below.

3. It is true that the complaint was filed by the appellant against the firm as well as all the partners including the Managing partner of the firm and the trial Court convicted the Managing partner (A2) alone and acquitted the remaining accused including the firm itself. There was no specific denial by the respondents 1 to 4 as regards their identity. Further in Ex. P17, copy of the written statement in original suit No.484 of 1999 on the file of III Additional Senior Civil Judge, Vijayawada, the respondents 1 to 4 did not deny their legal status.

4. As such the short question that falls for consideration in this appeal is whether it is obligatory on the part of the learned Magistrate to convict the respondents 1 to 4 along with the Managing partner (A2), when admittedly the prosecution was launched against A2 as well as the respondents 1 to 4.

5. Admittedly the second accused issued Ex. P6 cheque dated 6.8.1999 in discharge of legally enforceable debt due to the appellant by the firm as well as all its directors and in proof of the same, the appellant also filed Ex. P3 ledger copy in the trial court signed by the second accused in the capacity of the Managing Director. Since the questions whether the impugned cheque was issued by A2 in discharge of legally enforceable debt or liability of all the accused is not very much in dispute, the only question as stated above relevant for consideration is whether the respondents 1 to 4 are also liable for conviction along with A2 who is the Managing Partner.

6. The learned trial Court having regard to the evidence forthcoming before it which was revealed from the oral testimony of PW1 Mr. G. Koteswarao, customer service Manager of the appellant company and Exs. P1 to P17 documents marked by the appellant, arrived at the opinion that on 30.11.1998 A2 on behalf of A1, A3 to A5 signed on the account copy of the firm which is marked as Ex. P2. He also issued payment schedule on behalf of the remaining accused on 10.10.1998 and that he was representing A1 firm at relevant time. The learned trial Court also perused the account katha sheets Exs. P3 and P4 opened by the accused No.2 in the company on behalf of A1 firm and also A3 to A5. It further noticed that the signatures on Exs. P3 and P4 are that of A2 and also the fact that Ex. P5 payment schedule also contains the signature of A2.

7. The learned trial Court further noticed that there is no oral or documentary evidence available on record to establish that A3 to A5 a