For partners to incur vicarious liability under the Negotiable Instrument Act, the partnership firm must first be convicted of the offense; absence of firm conviction precludes individual partner liability.

JUDGMENT :

AJOY KUMAR MUKHERJEE, J.

1. The instant case had its origin on the basis of a petition of complaint under section 138/141 of the Negotiable Instrument Act (in short N.I. Act) filed by a partnership firm namely M/S Ma Durga Trading Company through one of its partner namely Amit Sugla against the partnership firm namely M/S Shiva Steels and two of its partners namely Sujeet kumar Jaiswal (respondent herein) and Sandeep Kumar Jaiswal alleging dishonour of cheque being no. 334375 dated 23.12.2013 for Rs. 14,63,427/-, allegedly issued in discharge of legally enforceable debt and/or liability of the partnership firm namely M/S Shiva Steels. During trial complainant examined one Amit Sugla as PW1 and proved the relevant documents to establish commission of offence, in terms of section 138 (b) of N.I. Act. Accused also adduced two witnesses in support of their defence and also exhibited documents on their side.

2. Learned Trial court came to a finding that accused no.1 i.e. the company namely M/S Shiva Steel and accused no.3, namely aforesaid Sandeep Kumar Jaiswal, a partner of M/S Shiva Steel raised some doubt in the mind of the court and for which they were acquitted but learned Trial court specifically held that accused no.2 Sujeet Kumar Jaiswal (respondent herein), who is another partner of the Shiva Steel and signatory of the impugned cheque, has not been able to rebut the presumption in favour of the complainant and thereby the trial court convicted said accused no.2/partner of the firm.

3. Being aggrieved by the said judgment of conviction passed against accused no.2/partner/Respondent herein Sujeet Kumar Jaiswal, preferred appeal before the Appellate Court. However complainant did not prefer any appeal against the acquittal order passed in respect of accused no.1/partnership firm and accused no.3/ another partner, Sandeep Kumar Jaiswal.

4. Learned Appellate Court while disposed of the appeal came to a finding that the complainant has failed to prove that the exhibit 3 i.e. cheque in question had been issued by the appellant in discharge of a legally existing debt or other liability and the appellant being entitled to benefit of doubt was acquitted. The appellate court specifically held that the complaint is not connected with the personal liability of the appellant but it was connected with the liability, if any, of Shiva Steel (accused no.1), of which the appellant was a partner and accordingly the first appellate court acquitted the accused no.2/partner/respondent herein also from the said proceeding.

5. Being aggrieved by the acquittal order of accused no.2/partner/respondent herein, the complainant/appellant herein contended that though Appellate Court held that there are contradictions in the evidence of complainant witnesses but they are not material or important so as to stand in the way of rebuttal the issuance of cheque which has already been admitted by the defence witnesses in their evidence and further proof of issuance of cheque by the Respondent herein does not arise at all. He further contended that the rubber stamp appearing in the challan is the rubber stamp of the accused/company but they are now trying to avoid criminal liability, and the court below heavily relied upon such defence contention. In the present case, the accused persons namely both the partners as well as the company have been arraigned as an accused and admittedly the company is a partnership firm and as such the trial court rightly convicted the accused no.2 who put his signature on the cheque.

6. Mr. Mukherjee learned counsel appearing on behalf of the opposite party submit