Can an account maintained in the name of a firm be said to be an account maintained by its Managing Partner? Can the managing Partner who issued the cheque be said to be the drawer of the cheque? These question arise for consideration in this case.

2. This revision petition is directed against the concurrent verdict of guilty, conviction and sentence (the sentence was modified by the appellate court) imposed on the revision petitioner/accused under section 138 of the N.I.Act.

3. The cheque is for an amount of Rs.90,000/-. The cheque is issued by the accused as Managing partner of M/s. Integrated Homoeo Pharmaceuticals, a firm. The complainant alleged that the accused had borrowed an amount of Rs.90,000/- and had issued the cheque in question, Ext.P1, for the discharge of the said liability. The Cheque, when presented, was dishonored on the ground of insufficiency of funds. A notice of demand was issued. The same was not received and was returned unclaimed. It is in these circumstances that the complainant came to court with this prosecution under section 138 of the N.I. Act after scrupulously observing the statutory time table.

4. The Complainant exmined himself as PW1 and Exts.P1 to P6 were marked on his side. The accused admitted that the cheque in the name of the complainant was issued by him. But he took the stand that it was entrusted by him on behalf of the firm to one chacko for discharge of a liability, which was there to the said chacko from the firm. The said chacko, according to the accused, had wanted the accused to issued the cheque in the name of the complainant. That is why he happened to issued such cheque in the name of the complainant. He further asserted that he had contacted the said chacko, who had agreed to refrain from initiating any coercive criminal proceedings. But in spite of that this complaint was filed. The accused took up a further stand that the liability had been discharged in full to the said chacko subsequent to the commencement of this proceedings. No defence evidence was adduced.

5. The courts below concurrently came to the conclusion that the complainant has succeeded in establishing all ingredients of the offence punishable under section 138 of the N.I.Act. Accordingly they proceeded to pass the impugned judgment. The learned Appellate Judge indulgently modified the sentence and reduced the substantive sentence of imprisonment from S.I. for a period of one year to S.I. for a period of six months.

6. Arguments have been advanced before me by the learned counsel for the revision petitioner/accused and the respondent/complainant. The learned counsel for the revision petitioner raises a point, which admittedly was not raised before the courts below. In as much as the said contention is one of law, the learned counsel for the petitioner submits that the same may be considered notwithstanding the fact that it had not been specifically raised before the courts below.

7. The contention raised is that in the total absence of any averment or evidence to show that the partnership firm M/s. Integrated Homoeo Pharmaceuticals owed any liability to the complainant, no prosecution can lie against the petitioner/accused, who is only the Managing Partner of the said firm which is a company within the expanded meaning of the expression company under section 141 of the N.I. Act. It is not specifically alleged or proved that the petitioner is in charge of and responsible to the company for the conduct of its affairs. The learned counsel for the petitioner, in these circumstances, contends that the prosecution against the petitioner who is only a signatory on behalf of the firm in the cheque in question – without even an allegation that the firm/company has committed any offence – is not maintainable. To paraphrase in legal jargon, the contention is that the petitioner/accused is not the drawer of the cheque. The firm/company is the drawer of the cheque. The petitioner is not, and the firm/company alon