J.B. Pardiwala, J.

1. Rule returnable forthwith. Ms. Pathak, the learned APP waives service of notice of rule for and on behalf of the respondent - State of Gujarat. Mr. Darshan Varandani, the learned Counsel waives service of notice of rule for and on behalf of the respondent - original complainant. By this application under Section 482 of the Code of Criminal Procedure, 1973, the applicant - original accused seeks to invoke the inherent powers of this Court, praying for quashing of the proceedings of the Criminal Case No. 1834 of 2014 pending before the learned Chief Judicial Magistrate at Bhuj, for the offence punishable under Section 138 of the Negotiable Instruments Act.

2. The applicant herein is one of the partners of a partnership firm running in the name of Varsani Construction Company. One another partner of the firm and an authorized signatory, namely, Rajeshbhai Varsani, issued a cheque of the amount of Rs. 1 lac dated 20th August, 2014 in favour of the complainant drawn on the HDFC Bank. The said cheque came to be dishonoured. In such circumstances, the complaint came to be lodged in the Court of the learned Chief Judicial Magistrate, Bhuj - Kachchh, registered as Criminal Case No. 1834 of 2014. The learned Counsel appearing for the applicant accused has two fold submissions to canvass. He submits that the applicant indisputably has not signed the cheque. At best, vicarious liability can be fastened by virtue of Section 141 of the Negotiable Instruments Act, and his second submission is that the complaint itself should fail because the partnership firm as a legal entity has not been arraigned as an accused.

3. On the other hand, this application is opposed by Mr. Varandani, the learned Counsel appearing for the complainant. He submitted that it is always open for him to either implead the partnership firm as an accused or even file a fresh complaint impleading the partnership firm as a legal entity and the authorized signatory.

4. Having heard the learned Counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is, whether the proceedings of the criminal case should be quashed against the applicant herein.

5. I am of the view that this application should succeed on the ground that in the absence of the legal entity not being arraigned as an accused, a partner or the authorized signatory cannot be prosecuted for the offence under Section 138 of the Negotiable Instruments Act. The law in this regard is well-settled.

6. In the case of Aneeta Hada v. Godfather Travels & Tours Private Limited, II (2012) CCR 195 (SC) : III (2012) SLT 417 : II (2012) DLT (Cri) 315 (SC) : II (2012) BC 638 (SC) : (2012) 5 SCC 661, the question that arose for disposal of the Supreme Court was whether an authorized signatory of a company would be liable for prosecution under Section 138 of the Negotiable Instruments Act without the company being arraigned as an accused. As initially there was difference of opinion between the two learned Judges regarding the interpretation of Section 138 of the Negotiable Instruments Act, a Reference was made to the Larger Bench of three Judges. While deciding the said Reference and interpreting Sections 138 and 141 of the Negotiable Instruments Act, the Supreme Court observed as under:

"53. It is to be borne in mind that Section 141 of the Act is concerned with the offences by the company. It makes the other persons vicariously liable for commission of an offence on the part of the company. As has been stated by us earlier, the vicarious liability gets attracted when the condition precedent laid down in Section 141 of the Act stands satisfied. There can be no dispute that as the liability is penal in nature, a strict construction of the provision would be necessitous and, in a way, the warrant.

58. Applying the doctrine of strict construction, we are of the considered opinion that commission of offence by the company is an express cond