Point of Law: There is a presumption under Section 139 of the N.I.Act that there exists a legally enforceable debt or liability.

ORDER :

1. By preferring this application, the applicant has requested to quash and set aside the proceedings of Criminal Case No. 1254 of 2014 pending before the Additional Chief Judicial Magistrate Court, Lunavada for the offence punishable under Section 138 of the Negotiable Instruments Act, as well as order of process issued dated 14.10.2014.

2. The brief case of this case are as under:-

2.1 That, the applicant-original accused, who was the partner of Honest Trading Company at Lunavada and was looking over the management of such company and was connected with respondent No.2 for the purpose of buying grains from him. That, on 11.5.2014, the applicant purchased grains from respondent No.2 agreeing to pay Rs.6,63,592/- and as against such purchase, it was promised that the amount so agreed to be paid to respondent No.2 within a period of one month, against which, when the same was not paid to respondent No.2 within the said promised period the amount was demanded by respondent No.2 from the applicant herein and therefore, the applicant issued a cheque bearing cheque No.000241 dated 12.8.2014 of Rs.6,63,592/- towards payment of the grains which was purchased in the name of respondent No.2. That, the applicant signed such cheque in capacity of a partner to Honest Trading Company. That, a cheque on being deposited with Bank of Baroda on 26.8.2014, the same was returned back with an endorsement of “insufficient funds” on 27.8.2014.Therefore, respondent No.2 issued a legal notice through Registered Post AD on 20.9.2014, despite the notice was served upon the applicant, he did not chose to repay back the amount due to respondent No.2 and therefore, an offence under Section 138 of the N.I.Act was registered against the applicant for such non-payment.

3. It is submitted by learned advocate for the applicant that the applicant was a partner of Honest Trading Company at Lunavada and was acting on behalf of the Company. It is further submitted that as per Section 141 of the Negotiable Instrument Act and as per decision of the Apex Court rendered in case of Anita Hada Case Vs. God Father Travels & Tours Pvt. Ltd. reported in 2012(5) SCC 661 which is further referred recently now in case of Ajit Balse Vs. Ranga Karkere reported in 2016(3) SCC Criminal 379 and also rendered in case of Onali Ismaileji Sadiket Vs. State of Gujarat reported in 2016(3) GLR 1991. He has also relied the decision rendered in case of G. Ramesh Vs. Kanike Harish Kumar Ujwal reported in 2019(O) AIJEL-SC 64303, it is now a mandate of law that unless and until the partnership firm/Company who is legal entity in the eyes of law is implicated as one of the accused, complaint itself is not maintainable against partner. It is further submitted that present case is squarely covered with reported decisions, as Honest Trading Company on behalf of whom, the applicant was acting as a partner is not joined as an accused, which is defect of law and therefore, as complaint itself is not maintainable and the same is required to be quashed and set aside. No other grievances were raised by learned advocate for the applicant.

4. While referring the complaint, it appears that the cheque issued on 12th August, 2014. It is submitted that the applicant by tries his level best to serve the notice to respondent No.2 but it was refused by him to accept, and therefore, notice was unserved to him. Affidavit of service is also filed by the applicant namely Uvesh M.Salim Patel in support of his contention about try to his serve the notice to respondent No.2.

5. Learned Additional Public Prosecutor appearing for the respondent -State has submitted that it is private dispute between the applicant and the respondent No.2. He further submits that the complaint is filed under Section 138 of N.I.Act and hence, this Court may pass necessary order.

6. No arguments advanced on behalf of the respondent No.2 as he has refused to accept the notice.

7. Having heard learned advocates for the respective parties and