In the context of a prosecution under Section 138 of the Negotiable Instrument Act, the cognizance of the offence is to be taken against the offender, and each offender has to be served with a demand notice as envisaged in the proviso to Section 138 of the Act.

JUDGMENT :

1. Heard the parties.

2. This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 482 Cr.P.C. with a prayer to quash the entire criminal proceeding as well as the order dated 09.09.2022, passed in Complaint Case No. 394 of 2016 whereby and where under the learned Judicial Magistrate -1st Class, Jamshedpur allowed the petition filed under Section 319 Cr.P.C. and added the petitioner which is the partnership firm as an accused of the said case.

3. The brief facts of the case is that the co-accused –Sunil M. Bafna as a representative/authorized signatory on behalf of the petitioner issued seven cheques which were dishonoured and the present Complaint Case No. 394 of 2016 relates to two cheques dated 05.12.2015 for Rs.19,00,000/- and dated 06.12.2015 for Rs.17,00,000/- and both the cheques were presented in the bank by the complainant and the same were returned by the banker on account of ‘funds insufficient’ vide two cheque return memos both dated 08.12.2015. The notice demanding payment of the amount of the cheques was issued on 02.01.2016 to the co-accused Sunil M. Bafna only and not to the petitioner partnership firm and online delivery report of the said registered letter by which the demand notice was made through Indian Post shows that the registered letters were delivered on 04.01.2016 upon Sunil M. Bafna only. The complaint was filed on 10.02.2016 and the learned Judicial Magistrate -1st Class, Jamshedpur found prima facie case under Section 138 of the Negotiable Instrument Act against the sole accused –Sunil M. Bafna and ordered for issuance of summons. The co-accused –Sunil M. Bafna filed Cr.M.P. No. 3055 of 2017 with a prayer for quashing the entire criminal proceeding on the ground that the said sole accused –Sunil M. Bafna is a partner of M/s Sunder Transport and the partnership firm has not been arrayed as an accused and the Co-ordinate Bench of this Court vide order dated 19.07.2019, passed in the said Cr.M.P. No. 3055 of 2017 dismissed the criminal miscellaneous petition with an opportunity to the petitioners to raise all the points in its defence at appropriate stage before the trial court. Thereafter the complainant-opposite party no.2 of this criminal miscellaneous petition filed an application under Section 319 of the Code of Criminal Procedure with a prayer for summoning the petitioner-partnership firm as an accused additionally. The learned Judicial Magistrate -1st Class, Jamshedpur, vide order dated 09.09.2022 has observed that since Section 319 (1) Cr.P.C. envisages that any person who is not an accused has committed an offence for which such person could be tried together with the accused, the court may proceed against such person for the offence which he appears to have committed and as per Section 141(1) of the Negotiable Instrument Act, 1881, if a person commits offence under Section 138 of the Negotiable Instrument Act, 1881 is a company, every person who at the time of the offence was committed, was in-charge of and was responsible for the company, for the conduct of the business of the company as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly and also considering that Sunil M. Bafna has issued the cheque as authorized signatory of Sunder Transport in favour of the complainant which was dishonoured; observed that without impleading the petitioner herein -M/s Sunder Transport as an accused, the matter cannot be decided properly, allowed the petition of the complainant and impleaded Sunder Transport as accused in the case.

4. It is submitted by the learned counsel for the petitioner, relying upon the Judgment of Hon’ble Supreme Court of India, in the case of N. Harihara Krishnan Vs. J. Thomas, reported in (2018) 13 SCC 663, para -27, 28 & 29 of which reads as under:-

“27. By the nature of the offence under Section 138 of the Act, the first ingredient constitu