Mir Alfaz Ali, J.

1. Heard Mr. H.L. Maurya, learned counsel for the petitioner and Mr. V.K. Chopra, learned counsel for the respondent. This petition under Section 482 Cr.P.C. has been filed praying for quashing the complaint lodged by the respondent under Section 138 N.I. Act and the proceeding in Complaint Case No. 3366C/2016 arising out of the said complaint.

2. The accused No. 1, M/S S.B. Industries in the C.R. Case No. 3366C/2016 is a partnership firm, of which the accused No. 2 & 3 are the partners. The present petition is filed by the accused No. 3, namely, Sahnaz Begum.

3. As per the allegations made in the complaint, there were business transaction between M/S Eastern Infratech and M/S S.B. Industries and in discharge of liability for an amount of Rs. 4,05,269/-, a cheque was issued by accused No. 2 being the managing partner of the accused No. 1. The cheque was dishonoured when presented for encashment. After dishonor of the cheque, necessary notice was given and eventually the complaint was filed under Section 138 N.I. Act, against the accused firm as well as the partners of the firm including the present petitioner. On the basis of such complaint, learned Magistrate took cognizance and issued process against the firm as well as all its partners.

4. Aggrieved by the order of taking cognizance by the learned Magistrate, the petitioner being a partner of the firm has filed this petition praying for quashing the complaint and the proceeding arising out of such complaint.

5. Learned counsel for the petitioner, Mr. Maurya submits that the cheque in question was issued by the accused No. 2, the Managing Partner of the firm, who was in charge of the day to day conduct of business of the firm, and as such, there was no cause of action to attribute penal liability to the present petitioner, as the cheque was not issued by her. Further contention of Mr. Maurya is that the learned Magistrate did not comply with the mandatory provision of Section 202 (1) Cr.P.C., though the accused had been residing outside the territorial jurisdiction of the learned Magistrate and therefore, the proceeding stood vitiated for noncompliance of the mandatory provision of Section 202 Cr.P.C..

6. Refuting the submission of the learned counsel for the petitioner, Mr. V.K. Chopra, learned counsel appearing for the respondent submits that in view of Section 141 N.I. Act, the petitioner was also liable as a partner, being responsible to the conduct of business of the accused firm. Though, the petitioner can take the defence that she was not responsible for the day to day conduct of business of the firm, the burden to prove such defence lies with the petitioner and such defence can be taken only at the Trial. It is for the Trial Court to decide on the basis of evidence, whether the petitioner is absolved from the liability, and not by this Court exercising, inherent power under Section 482 Cr.P.C., submits Mr. Chopra. As regards noncompliance of the provision of Section 202 Cr.P.C., learned counsel for the respondent submits that the provision of Section 202(1) Cr.P.C. is directory and not mandatory and that in respect of prosecution under Section 138 N.I. Act, if all the requirements for lodging a complaint are found satisfied, non-compliance of Section 202 (1) Cr.P.C. itself shall not vitiate the proceeding. To buttress the submission, learned counsel placed reliance on the following two decisions:

(i) (Muhammed Basheer, Solo Arts, Advertising & Marketing v. The State of Kerala)

(ii) M/S Mesh Trans Gears Pvt. Ltd. v. Dr. R. Parvathreddy (Crl. Pet. 8943/2010) (Karnataka High Court).

7. From the rival submissions of the learned counsel, the following two questions, emerges for consideration of this court.

(i) Whether the proceeding stood vitiated for non-compliance of provision of Section 202 Cr.P.C.?

(ii) When the cheque was issued under the signature of the accused No. 2, the Managing Partner of the firm, whether taking cognizance and issuing process a