The main legal point established in the judgment is the interpretation and application of Section 138 and Section 141 of the Negotiable Instruments Act, particularly regarding the liability of managing partners in a firm and the requirement of specific averments in a complaint.

ORDER :

Above appeal is filed by the accused in C.C.No.1160/2002 on the file of the Judicial First Class Magistrate -I, Ernakulam. The appeal is filed against the order of acquittal of the 2nd respondent herein. The above case is filed by the appellant before the lower Court against respondent No.1 and 2 to prosecute them under section 138 of the Negotiable Instruments Act (hereinafter, the parties are mentioned in accordance to their rank before the trial Court).

2. The case of the complainant in brief is as follows:-

The complainant is engaged in the business of transporting containers and hiring trailer lorries for transporting. According to the complainant, the accused issued a cheque drawn on M/s.Federal Bank Ltd. dated 26.06.1999 for Rs.1,96,000/-in favour of the complainant for discharging the liability incurred in the business. The cheque was presented for encashment, it was dishonored with an endorsement 'fund insufficient'. When a statutory notice was issued, the accused refused to pay the amount. Hence, the complaint was filed.

3. To substantiate the case, one witness was examined on side of the prosecution. Exts. P1 to P6 are the exhibits. On going through the evidence and documents, the trial Court found that, the 1st accused is guilty of the offence under Section 138 of the Negotiable Instruments Act. Since, the 1st accused is a firm, an amount of Rs.5,000/-was imposed as fine. The 2nd accused was found not guilty and he was acquitted. Against the acquittal order of the 2nd accused, this Criminal Appeal is filed by the complainant.

4. Heard both sides. The counsel for the complainant submitted that, the order of acquittal of the 2nd accused in this case is illegal, in the light of the judgment of the Apex Court in S.M.S. Pharmaceuticals Ltd. Vs. Neetha Bhalla (2005(4)KLT 209). According to the counsel, the 2nd accused is the Managing Partner of the firm. He signed the cheque on behalf of the firm. Therefore, he is responsible as per Section 141 of the Negotiable Instruments Act.

5. The counsel for the 2nd accused submitted that, the decision in S.M.S.Pharmaceuticals case (Supra) has not considered the effect of partners in a partnership firm. According to the counsel, as per the Partnership Act, Managing Partner is not defined and hence if a partner is implicated as an accused in a criminal complaint, there should be averments in the complaint to the effect that he was in charge of, and was responsible to the firm for the conduct of the business of the company, as well as the company. According to the counsel, there is no such averment in the complaint and hence the benefit of the decision of the S.M.S.Pharmaceuticals Ltd. Vs. Neetha Bhalla (Supra) is actually in support of his contention. The learned counsel also cited the decision of the Division Bench of this Court in Mymoonath Beevi Vs. State of Kerala, 2005(4) KLT 174. The counsel submitted that, the Division Bench of this Court observed in para 12 of the decision that, the complaint should contain the necessary facts constituting the offence as against the person arranged as the accused. If there is no such averments, according to the counsel, the prosecution is not possible against a partner, even if he is the Managing Partner of the firm. The counsel also submitted that, no notice is issued to the firm in this case. He also submitted that the execution of the cheque is not proved in this case.

6. After hearing both sides, I am not in a position to agree with the contentions of the 2nd accused in this case, who is acquitted by the trial Court. S.M.S.Pharmaceuticals Ltd. (Supra) is the three Bench decision of the Supreme Court. Actually the case was referred by a three Bench because of the difference of opinion of the other two benches. The matter was referred to the larger bench for the determination of the following questions.

(a) Whether for purposes of S.141 of the Negotiable Instruments Act, 1881, it is sufficient if the substance of the allegation read as a