COMMON ORAL JUDGMENT

In all the aforesaid three applications filed by the applicant, the common proposition of law that has emerged for consideration of this Court is `whether an administrator/partner of a partnership firm would be liable for prosecution under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the `N.I. Act’, for the sake of brevity and convenience) without the partnership firm being arraigned as an accused?’.

2. The brief facts leading to the filing of the present applications are as under:

2.1 The present applicant in all the three applications is a partner/administrator of one M/s. Maruti Projects, a partnership firm. The said firm was doing the business of construction on contract basis. The respondent No.2 herein – the original complainant was doing the business of stonecrushing in the name of Radhika Stone Industries along with other owners. It is alleged that out of the business transaction, the partnership firm of the petitioner has raised a demand for stone material from respondent No.2 for the purpose of construction of road in Ahmedabad City, and therefore, the respondent No.2 supplied material to the partnership firm, namely, M/s. Maruti Projects. It is further alleged that the partnership firm issued cheque bearing No. 107809 dated 22nd June 2007 for an amount of rupees five lakhs to discharge its liability. Similarly, said partnership firm issued cheque No. 107819 dated 18th June 2007 for an amount of rupees five lakhs, and another cheque No. 107847 dated 13th February 2008 for an amount of rupees five lakhs. It is alleged by the respondent No.2 – the original complainant that when the aforesaid three cheques issued by the partnership firm for the discharge of its liabilities were deposited by the complainant in his bank account, said cheques were returned with an endorsement `insufficient fund’, and “payments were stopped by the drawer” respectively. It is further alleged by the complainant that he issued the notice to the applicant-petitioner herein under Section 138 of the N.I. Act. However, the accused had not given any reply to the said notice nor made any payment. The respondent No.2 – complainant, therefore, filed three different complaints being Criminal Case No. 283 of 2007, 284 of 2007 and 154 of 2008 against the present applicant and others.

2.2 The learned Judicial Magistrate First Class, Sayla, issued the process against the original accused No. 1 and 2 in Criminal Case No. 283 of 2007. Learned Magistrate also issued the process against accused No. 1 and 4 in Criminal Case No. 284 of 2007, whereas in Criminal Case No. 154 of 2008, process was issued against the only accused – applicant herein.

2.3 The original accused No.1 in the aforesaid three cases, namely, Riteshbhai D. Ramani in all the three aforesaid cases, has filed the present Criminal Miscellaneous Applications under Section 482 of the Code of Criminal Procedure, 1973 (for short, `the Cr.P.C.’) for quashing and setting aside the criminal complaints filed by the respondent No.2 before the learned Judicial Magistrate First Class, Sayla.

3. Heard learned advocate Mr. Premal S. Rachh for the applicant, Mr. Ashish M. Dagli, learned advocate for respondent No.2, and Ms. Chetna M. Shah, learned Additional Public Prosecutor for respondent No.1 – State of Gujarat.

4. Learned advocate Mr. Premal S. Rachh appearing for the applicant has mainly submitted that the original complainant had issued the notice only to the partners of the firm, and no notice was issued to the partnership firm, namely M/s. Maruti Projects. It is further submitted by the learned advocate for the applicant that the complainant has filed the complaints against the partners of the aforesaid partnership firm without joining the partnership as an accused. In short, the partnership firm is not shown as accused in the impugned complaints. The learned advocate for the applicant further relied upon Section 138 of the N.I. Act read with Sect

Click Here to Read the rest of this document