A.K. Pathak, J.- (ORAL)

1. Petitioner seeks quashing of the summoning order dated 17th February, 2005 passed by the learned Metropolitan Magistrate, Rohini and the complaint case number 06/2001 titled Shri Piara Singh Vs. M/s Nokia Hot Press and others, qua the petitioners.

2. Respondent no. 2 has been served but has not put in appearance.

3. Short question involved in this case is as to whether the petitioner being partners of the firm are vicariously liable for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short hereinafter referred to as N.I. Act) with regard to cheques, issued by one of the partner in his individual capacity from his personal account.

4. In brief, facts of the case are that the respondent no. 2 filed a complaint under Section 138 Negotiable Instruments Act 1881 against M/s Nokia Hot Press and its partners. Petitioners were arrayed as accused Nos. 3 and 4. It was alleged that accused no. 2 Pradeep Jain had taken loan of Rs.2,65,000/- from respondent no.2 and in order to clear the loan issued seven post dated cheques totaling to Rs.2,65,000/-. Accused No.2 signed the cheques but without mentioning the name of the firm. On presentation, cheques were returned dishonoured. Cheque amount was not paid despite notice hence, the complaint.

5. Learned counsel for the petitioner has contended that petitioners were not the partners of M/s Nokia Hot Press; no such firm existed. Even if it is presumed that petitioners are partners of the firm, they cannot be held responsible since the cheques were issued by accused P. K. Jain from his personal account in his individual capacity. It is further contended that since drawer of the cheque (accused No.2) had drawn the cheques in his individual capacity from his individual account, neither the partnership firm nor its partners can be held vicariously liable by taking aid of Section 141 of the N.I. Act. Reliance has been placed on M/s Gujarat Oleo Chem. Vs. State & Anr., reported in 2010 (1) JCC (NI) 84 and Srikant Somani & Ors. Vs. Sharad Gupta & Anr., reported in 2005 (2) JCC (NI) 138.

6. Perusal of cheques show that same have been signed by the accused No.2 P.K.Jain. No rubber stamp of the firm has been affixed nor name of the firm has been mentioned below the signatures of accused No.2. Only name of the accused No.2 is printed on the cheque. As per the complaint also loan was taken by the accused No. 2. It is thus clear that the cheques were signed and issued by the accused No. 2 in his individual capacity. There is nothing to show that same were issued by the firm.

7. Section 138 of the Negotiable Instruments Act, 1881 reads as under:- Dishonor 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 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) XXXXXXXXXXXXXXXXXXX

(b) XXXXXXXXXXXXXXXXXXX

(c) XXXXXXXXXXXXXXXXXXX

8. Section 141 of the Negotiable Instruments Act, 1881 reads as under:- Offences by Companies (1) If the person committing an offence under Section 138 is a company, every persons “who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to the guil

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