A partner of a firm can be prosecuted under Section 138 of the N.I. Act for dishonoring cheques issued by the firm, even in the absence of the prosecution of the firm under Section 141 of the N.I. Act, provided that the partner was in charge of and responsible for the conduct of the firm's business.

Joytosh Banerjee, J.: This is a proceeding in which the order and judgment dt. 20th July, 1999 passed in Criminal Appeal No. 18/95 by the learned Judge, 7th Bench, City Sessions Court, Calcutta confirming the order of conviction and sentence passed in case No. 2357/90 by the Chief Metropolitan Magistrate, Calcutta, on 4th of April, 1995 has been challenged.

2. Briefly stated the case of the petitioner is that O.P. No.1 moved a petition of complaint under section 138 of N.I. Act wherein the petitioner was treated and prosecuted as proprietor of M/s. Gupta Brothers (Sellac). The case was transferred to the Metropolitan Magistrate, 5th Court for disposal by the Chief Metropolitan Magistrate, Calcutta after he had taken cognizance. The learned Magistrate completed the trial and passed an order against the petitioner holding him guilty under the charge under section 138 of the N.I. Act. He referred the case to the learned Chief Metropolitan Magistrate, Calcutta for imposing adequate sentence. The learned C.M.M. after hearing the parties passed his order sentencing the petitioner to pay a fine of Rs. 5,51,294/- in default to suffer S.I. for 6 months by his order dt. 4.4.95. The petitioner being aggrieved by such judgment and order preferred an appeal being Criminal Appeal No. 18/ 95 in the City Sessions Court and such appeal was transferred to the court of learned Judge, 7th Bench, who by the order impugned confirmed the judgment and order passed by the court below and dismissed the appeal. Such order was passed ex parte in the absence of the appellant's advocate. Now in the present proceeding, it is alleged that the courts below failed to appreciate that the petitioner was wrongly and illegally treated and held liable for the alleged dishonoured cheques in his personal independent capacity as proprietor of M/s. Gupta Brothers (Sellac). It is further alleged that the courts below failed to consider that the relevant contract and/ or agreement between the parties was entered into by and between the complainant company and a partnership firm, M/s. Gupta Brothers (Sellac) and not with the petitioner and the entire money had been paid by the complainant company to the said partnership firm as per the allegation of the complainant and not to the petitioner at all and further more that the entire liability and debt towards the complainant company was absolutely of the said partnership firm and not of the petitioner. It is further alleged that the courts below failed to appreciate that in respect of the impugned dishonoured cheques, the petitioner could be prosecuted and/or held responsible only in his vicarious liability as partner of the said partnership firm if the requirement under section 141 of the said Act were adequately proved and not otherwise and in the instant case prosecution was launched under section 138 of the N.I. Act and section 141 of the said Act was not invoked to proceed against the petitioner.

3. I have heard the submissions advanced by the learned Counsels for the petitioner as well as O.P. No. 1. The learned Counsel for the petitioner has mainly contended that the contract was entered into by M/s. Gupta Brothers (Sellac) and Shaw Wallace & Co. Ltd. (complainant). The accused is simply a partner of M/s. Gupta Brothers (Sellac). He did not receive the advance by the Shaw Wallace & Co. Ltd. and the amount was received by M/s. Gupta Brothers. Secondly it was argued that the cheques in question were issued by the firm, namely, M/s. Gupta Brothers (Sellac) and not by the accused. Thirdly, it is also the contention that in the absence of the company, the accused cannot be prosecuted and convicted. In support of such contention, the learned Counsel has placed his reliance on reported decisions of the Apex Court, in the case of The State of Madras vs. C.V. Parekh & Anr., reported in AIR 1971 SC 447, Sham Sundar & Ors. vs. State of Haryana , reported in AIR 1989 SC 1982 and also Sheoratan Agarwal & Anr. vs. State