The court emphasized the need for uncontrovertible material to support contentions raised in applications and held that the complaints should not be quashed at this stage.

ORDER :

1. These applications are filed under Section 482 of the Code of Criminal Procedure, 1973 (‘the Code’ for short) for quashing and setting aside the complaints being Criminal Case Nos.37079 of 2016, 37076 of 2016, 37081 of 2016, 37072 of 2016, 37077 of 2016, 28893 of 2016 and 37075 of 2016 pending in the Court of learned 3rd Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Surat qua the applicant filed under the provisions of Section 138 of the Negotiable Instruments Act (‘NI Act’ for short).

2. The facts leading to filing of these applications, as stated in the applications are such that the impugned complaints came to be filed by the respondent no.2- complainant alleging that the complainant is a private limited company; that the complainant has filed the impugned complaints in his capacity as a Director of the said company; that the complainant company is indulged in the business of imported industrial call trading; that the company has various branches, out of which one is situated at Thane, Maharashtra; that the accused visited the Thane office of the complainant company and purchased goods for which the complainant company had raised certain bills; that for the said outstanding payment of goods from Marriott Cotsyn Industries Limited, the accused had given the cheques in his capacity as an authorized signatory, which were deposited by the complainant. However, the said cheques returned with an endorsement ‘funds insufficient’; that the statutory notice was issued to the applicant, which was not replied and the amount was not paid. Therefore, the impugned complaints are filed, which are prayed to be quashed by way of these applications.

3. Heard learned advocate for the parties.

3.1. Learned advocate for the applicant submitted that the goods were purchased by the partnership firm M/s Marriott Cotsyn Industries of which the accused is a partner, the cheques in question were issued by the said firm; however, the said firm is not joined as an accused; that in absence of joining the partnership firm, the partners cannot be prosecuted for the offence punishable under Section 138 of the NI Act; that none of the other partners have been prosecuted as well; that therefore the proceedings against the partner solely are not maintainable; that the argument of the complainant that it is a disputed question of fact is not tenable as the complaint orally disputes the document of partnership firm but no reply has been filed till date taking the said contention; that even though the contention of the complainant that no reply to the notice has been given is admitted, it would not render the prosecution maintainable when the partnership firm is not joined as an accused. He, therefore, submitted that the complaints against the applicant are not tenable and liable to dismissed by allowing these applications, considering the various judgments of the Hon’ble Apex Court as well as this Court.

4. Per contra, learned advocate Mr.Dave for the respondent no.2 has submitted that despite there being a settled law that the partners cannot be prosecuted unless partnership firm is joined as an accused, the issuance of cheques from the account maintained by the partnership firm itself is in dispute and therefore the said point is required to be proved by leading evidence; that the signatures on the cheques are done as authorized signatory for Marriott Cotsyn Industries and not as a partner and therefore the complainant would not be aware of the status of the accused-firm; if on the cheques, partner would have been mentioned, there would have been no dispute and therefore, in absence of the same, it is a disputed question of fact which is required to be adjudicated at trial; that in the statutory notice as well as in the complaint, by accepting liability of M/s Marriott Cotsyn Industries, the cheques were given from M/s Marriott Cotsyn Industries, that despite specific case raised in the statutory notice and even though service