IMPORTANT POINT
The main legal point established in the judgment is the requirement to join all necessary parties as accused under the provisions of the Negotiable Instrument Act, and the vicarious liability of company officials.

JUDGMENT :

1. By way of preferring present application under Section 482 of the Criminal Procedure Code, 1972, the applicants have invoked extra ordinary jurisdiction of this Court for quashing and setting aside the criminal complaint being Criminal Case No.389/2017 pending before the court of the learned 12th Additional Chief Judicial Magistrate, Rajkot.

2. Heard learned advocate, Mr. Sandeep Limbani for the applicant, learned APP Mr. Hardik Soni for the respondent and learned advocate, Mr. Pratik Jasani for the respondent no.2.

3. The brief facts leading to the filing of the present application are as under,

3.1 That, the applicant and the respondent no.2 both were friend and while doing business, the applicant suffered loss in his business and as he was in need of money, he had borrowed Rs.10,00,000/- from the respondent no.2 with an assurance that it will be repaid, however after sometime, the respondent no.2 started demanding the said amount and, therefore, the applicant issued Cheque No.315238 dated 28.08.2015 drawn on ING Vyasa Bank Ltd. from the account of Kanani Trading Company with an assurance that it will be honoured on deposit of the same and relying upon the said assurance, the respondent no.2 deposited the said cheque in his account, however, it was dishonoured and, hence, a legal notice was issued upon the applicant, which was duly served, however, the applicant did not make the payment and, hence, the respondent no.2 filed aforesaid complaint before the competent court, wherein after verification of the complainant, process was issued, which has been challenged by the applicant before this Court by filing aforesaid quashing petition.

4. Learned advocate, Mr. Limbani appearing for the applicant submitted that the applicant and the respondent no.2 both were friends and the applicant was working as Commission Agent and having shop in the market and he has maintained stock of the goods of agriculture product with a sole intent to earn huge profit but as the prices have gone down, the applicant suffered huge loss, therefore, the applicant borrowed amount from the respondent no.2 and in turn, the respondent no.2 has given Rs.10,00,000/- to the applicant and when the respondent no.2 started demanding the said amount, the applicant issued cheque to the respondent no.2, which was dishonoured on deposit of the same, which led to filing of the criminal complaint against the applicant before the competent court, wherein process was issued after verification of the respondent no.2, which was served upon the applicant and, hence, the applicant has approached this Court and challenged the order of issuance of process, however while issuing Rule, ad-interim relief was granted and in pursuance thereto, further proceeding of the impugned complaint has not proceeded further.

5. Learned advocate for the applicant submitted that the present application has been filed on the premise that there was infirmity on the part of the respondent no.2 at the time of institution of the complaint as the cheque issued by the applicant purportedly signed by him was belonging to one Kanani Trading Company and the present applicant is one of the Partners of the said firm. Learned advocate submitted that it is an admitted position of fact that as per the provision contained under the Negotiable Instrument Act, more particularly, under Section 138 read with Section 141 of the NI Act, all the partners of the firm as well as partnership firm are required to be joined as accused, however admittedly in the present case on hand, at the time of institution of the complaint, neither the partnership firm nor other partners of the firm have been joined as accused. Learned advocate submitted that it is also an admitted position of fact that there was mandatory provision as provided under the NI Act that before registration of the complaint under the NI Act, demand notice is required to be issued to the accused persons, however in the present case, the complainant h