The court affirmed that partners can be held vicariously liable for a cheque issued by the firm if sufficient averments are made in the complaint, regardless of claims of being sleeping partners.

JUDGMENT :

AJOY KUMAR MUKHERJEE, J.

1. The petitioners herein have prayed for quashing the impugned proceeding being CS No. 29044 of 2019, initiated under section 138 of Negotiable Instrument Act (N.I. Act) which is presently pending before judicial Magistrate 18th Court Calcutta.

2. The petitioners are the partners of the partnership firm namely M/s Madhusuhdan Garai, who entered into a dealership agreement with Honda Motor Cycle and Scooter India Pvt. Ltd. Aforesaid firm proposed for financial assistance to the opposite party No. 2, who sanctioned Rs. 6.50 Crores on the terms and conditions mentioned in the sanctioned letter dated 24.09.2018.

3. Petitioners further contention is that some dispute and differences arose between said firm and Honda Motor Cycle and Scooter India Pvt. Ltd. and for which business of the petitioners firm were badly hampered and the petitioners suffered huge loss and damages. In the said backdrop, the said firm requested opposite party no. 2 to restructure the loan limit by reducing it from Rs. 6.50 to 3.25 crores and to convert the balance 3.25 crores into a term loan for the period of three years, which was not accepted by the opposite party no. 2/bank and on the contrary by issuing a letter dated 14th February 2019, they called upon the said firm to deposit Rs. 6,60,04,570.84P, failling which the account will be classified as non-performing asset (NPA).

4. Petitioner further contended that the firm immediately gave its reply and also apprised them regarding the dispute between the firm and Honda Motor Cycle Ltd. and they also proposed to pay 10% to 20% of the outstanding amount and further requested them to allow for making payment of the balance amount in easy installments. Thereafter the firm again issued a detailed letter on 19.02.2019 with the same prayer, but the opposite party no. 2 did not consider their request made in the aforesaid two letters and on the contrary issued a letter on 2nd March, 2019, threatening that the said firm will be declared as willful defaulter. The firm by its letter dated 13.03.2019 requested the opposite party no. 2/bank not to declare them as wilful defaulter without following the Reserve Bank guideline and the firm also requested the opposite party no. 2/bank to reschedule the payment of the bank within a reasonable and easy process and not to initiate any proceeding as they have a genuine intention to repay the loan to the opposite party no. 2/bank, but the bank did not consider such request.

5. Petitioners further contended that said firm had also given proposal to take back unsold two wheelers lying, in the custody of the said firm but the bank did not take any step so far and the unsold two wheelers worth Rs. 1 crore and odd is unnecessarily being damaged and/or depreciating in the godown of said firm. As the bank/opposite party no. 2 did not consider the grievance of the firm, the petitioners herein and the firm being aggrieved by the non action on the part of the bank, filed a Writ Petition before this Court being WPA no. 8434(W) of 2019, which was disposed of by this Court on 24.04.2019 on the grounds mentioned therein.

6. Thereafter, the firm received a message from their banker that a cheque for Rs. 6,02,91,895/- has been dishonored due to insufficient fund. The firm issued a letter to the opposite party no. 2/bank not to take any step for the alleged outstanding amount mentioned in the cheque, by a letter dated 13th May, 2019. Be it also mentioned that said firm also received a notice issued by the bank on 13th May, 2019 under section 13(2) of the SARFAESI Act, 2002 calling upon the firm to pay the sum of Rs. 6,02,91,895/-.

7. Being aggrieved by the aforesaid criminal proceeding initiated by the bank under section 138 of the N.I. Act, the petitioners contended that the petitioners are the sleeping partners of the said pertnership firm which have availed loan facility from O.P. No. 2 and accused no. 2 namely Sangramjit Garai who is the son of the petitioners i