ORDER :

1. This is an Appeal filed under Section 378 of the Code of Criminal Procedure challenging the judgment and order of acquittal dated 10.01.2020 passed in Criminal Case No.16736 of 2016 by the learned 8th Additional Senior Civil Judge, Surat, whereby, respondent nos. 2 to 5 – original accused came to be acquitted by the learned trial Court for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 on the sole ground that the partnership firm is not joined as accused.

2. The gist of the complaint as emerges from the record is that:

2.1. The complainant Shaileshbhai Punabhai Thesiya was one of the partner of partnership firm which was constituted in the name of “Mamta Creation”, to which, accused no.1 who is also wife of accused no.2 and accused no.2 had joined as partner. It is the case of the complainant that an amount of Rs.12,50,000/- was invested by him, however, for the reasons best known to accused nos.1 and 2, the same was not reflected in the account of partnership firm.

2.2. Subsequently, the complainant had retired from the said firm and accused no.3 had joined as new partner along with accused nos.1 and 2 in the said partnership firm. It is further contended that at the time of retirement the aforesaid accused have given promise to return the amount invested by the complainant.

2.3. Initially, the assurance was given to repay such amount. However, inspite of repeated demands being raised by the complainant, the accused have failed to repay such amount. Ultimately, the disputed cheque of Central Bank of India bearing no.003454 dated 2.11.2015 of an amount of Rs.8,88,703/- was alleged to have been handed over to the complainant.

2.4. It is further contended that the complainant had presented said cheque through his HDFC Bank Account at Ghod Dod Road Branch, Surat on 2.11.2015. The Bank had returned the said cheque with the endorsement of “account closed” on 3.11.2015. Thus, a cause of action arose for the complainant to initiate proceedings under Section 138 of the Negotiable Instruments Act.

3. Initially, a statutory demand notice was raised by the complainant, which was duly served upon the accused through Registered Post AD, which was returned back with endorsement of “refused” on 27.1.2016. Similarly, notice was issued to all the accused which had again returned back with endorsement of “refused”. Hence, complaint came to be lodged against the accused nos. 1 to 3 on 29.2.2016 under Section 138 of the Negotiable Instruments Act. The said complaint was registered as Criminal Case No.16736 of 2016 before the Court of 8th Additional Senior Civil Judge, Surat.

4. Upon due verification of the complainant, the trial Court had issued summons upon the accused nos. 1 to 3 who had appeared before the Court and their plea was recorded vide Exhs. 7 to 9 under Section 251 of the Code of Criminal Procedure. The accused nos. 1 to 3 have denied their offence / guilt. The further statement of the accused were recorded under Section 313 of the Code of Criminal Procedure wherein they have denied the fact alleged in the complaint. The accused no.1 had taken specific defence that he was a sleeping partner and accused nos. 2 and 3 were the active partners in the said firm. All the accused have further raised defence of misuse of cheque and had jointly prayed to not to entertain such complaint. Oral and documentary evidence were taken into consideration by the trial Court.

5. While examining issue no.1, the trial Court notice that the partnership firm which is a registered partnership firm in the name of Mamta Creation has not been joined as accused. The Trial Court took notice of Section 141 of the Negotiable Instruments Act and relied upon the decision of this Court rendered in Criminal Miscellaneous Application No.1815 of 2015 dated 2.2.2015. The trial Court thus formed opinion that the partnership firm was necessary party to be arraigned as accused for prosecution under Section 141 of the Negotiable In