The main legal point established in the judgment is the requirement for specific averments to establish vicarious liability of partners in a partnership firm under Section 138 of the NI Act and the need for unimpeachable evidence to quash a complaint under Section 482 of the Code.

ORDER :

1. All 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.7029 of 2019 pending before the learned Chief Judicial Magistrate, Bhavnagar filed under the provisions of the Negotiable Instruments Act (`NI Act’ for short).

2. As the common question of facts and law are involved in all these applications, at the request of learned advocates for the parties, they are heard together and disposed of by this common oral order.

3. The facts giving rise to these applications, as stated in the applications, are such that the impugned complaint is filed by the respondent no.2 inter alia stating that his partnership firm is engaged in the business of trading in various kinds of irons and the petitioners who are the partners of partnership firm names Kamnath Enterprise, were doing regular business with his firm and the said firm used to purchase goods from respondent no.2 on credit basis and the said firm used to make payment at a later point of time and as per the books of accounts of respondent no.2, there was an outstanding amount from the applicants’ firm for which the applicants’ firm issued cheques, which were deposited by respondent no.2 and the same were dishonoured with an endorsement ‘payment stopped by drawer’. Therefore, the respondent no.2 issued the notice and as the amount was not paid, the applicant filed the impugned complaint; it is this complaint which is prayed to be quashed by filing these applications.

4. Heard learned advocates for the parties.

4.1 Learned advocate for the applicants submitted that on bare reading of the complaint, it transpires that the complaint is filed against the partners only without impleading the partnership firm as party. He has submitted, by drawing attention to the notice correspondence that even the notice is issued to the partners only and no notice is issued to the partnership firm. He submitted that the cheques in question were issued for and on behalf of the partnership firm i.e. Kamnath Enterprise, however, the said is not arraigned as an accused in the complaint; that Section 141 of the NI Act is not invoked in this complaint and the firm has not been joined as an accused and therefore the partners alone cannot be held vicariously liable for the same; that the complaint is fundamentally defective in substance; that there is no provision in the Code for permitting amendment in the complaint, particularly, when the amendment is changing the entire nature of the complaint. He, therefore, submitted that the impugned complaint is required to be quashed.

4.2 Learned advocate for the applicants, has relied on the following citations, in support of his submissions:

(1) Aneeta Hada V/s Godfather Travels and Tours reported in 2012(5) SC 661;

(2) Himanshu V/s B.Shivamurthy & Anr. Reported in 2019(3) SCC 797;

(3) Manojbhai Ramnikbhai (Rojvadiya) Kuvadiya Partner of Milan Tyres V/s The State of Gujarat & Anr. Decided in Criminal Miscellaneous Application No.13523 of 2019 to 13527 of 2019;

(4) Madhu Unnikrishnan Menon V/s The State of Gujarat & Anr., reported in 2022(4) GLH 533;

(5) Navinbhai Hargovindbhai Patel V/s The State of Gujarat & Anr., reported in 2023(0) AIJEL-HC 247019;

(6) Deepak Chhindalal Sharma V/s The State of Gujarat & Anr. Decided in Criminal Miscellaneous Application No.5468/2019 with 5470/2019 and 5472/2019;

(7) Alka Khandu Avhad V/s Amar Shyamprashad Mishra reported in 2021(4) SCC 675.

5. He, therefore, submitted that in view of the above settled legal position, in the present case, when admittedly the partnership firm is not impleaded as accused in the said complaint, the same is required to be quashed as not maintainable in the eye of law. He, therefore, prays to exercise the inherent powers under Section 482 of the Code and allow these applications and quash the impugned complaints.

6. Per contra, learned APP for respondent no.1-state and learned advocate