Prosecution of one partner issuing cheque whether justified excluding the firm.

PRATAP SINGH, J.

The accused in C.C. Nos. 6856, 6857, 6858, 6932 and 6933 of 1991 on the file of the VIIIth Metropolitan Magistrate, George Town, Madras, has filed these petitions under section 482 of the Criminal Procedure Code, praying to call for the records in the above cases and quash the same. Criminal Original Petition No. 2515 of 1992 is concerned with C.C. No. 6856 of 1991. In it, the respondent herein had filed the complaint against the petitioner for an offence under section 138 of the Negotiable Instruments Act (which I shall hereafter refer to as "the Act"). The allegations in it are briefly as follows :

In respect of the loan borrowed under an agreement dated December 28, 1990, for the value of Rs. 25, 000 to pay in five equal monthly instalments for the payment of dues, the accused issued the cheques on Central Bank of India, Sowcarpet, dated April 28, 1991, and May 28, 1991, each of the value of Rs. 5, 000. When the cheques were presented for payment on September 16, 1991, they were dishonoured with an endorsement "refer to drawer". The complainant issued notice dated September 16, 1991, to the accused, calling upon him to pay the amount within 15 days. In spite of the notice, the accused has failed to pay the amount. Hence the complaint.

Criminal Original Petitions Nos. 2516 to 2519 of 1992 are concerned with C.C. Nos. 6857, 6858, 6932 and 6933 of 1991. In those complaints, the very same respondent has filed private complaints against the very same petitioner for offences under section 138 of the Act on similar allegations, with regard to different cheques, which were in respect of the loans borrowed under the agreements dated February 22, 1991, April 4, 1991, November 29, 1990, and April 4, 1991, respectively.

Mr. T.K. Sampath, learned counsel appearing for the petitioner, would submit that the agreements referred to in the complaints were between the complainant's firm, Hema Finance Corporation and Sreenivasa Goods Transports, of which the accused/petitioner is only a partner and that the cheques referred to in the complaints were issued only by Sreenivasa Goods Transports, the firm of which the accused/petitioner is only a partner and while so when the partnership firm was not arrayed as an accused, these complaints, arraying the partner alone as an accused are not maintainable and hence are liable to be quashed. He would submit that the drawer of the cheque is the firm and the accused is only a partner of the firm and the filing of the complaint against him alone is not maintainable and the firm ought to have been made as an accused in these cases to sustain the maintainability of the complaint.From the original records, I find that the cheques were issued by the Sreenivasa Goods Transports and the petitioner/accused has signed as partner for Sreenivasa Goods Transports. That would substantiate the submission made by Mr. T.K. Sampath that the drawer of the cheque was only the firm, viz., Sreenivasa Goods Transports, and the petitioner/accused had signed it as a partner thereof. The xerox copies of the agreements referred to in the complaints are found in the original records. Those agreements are between Sreenivasa Goods Transports and Hema Finance Corporation. From the above, it would be apparent that for the amount due under the agreements entered into by the firm, the cheques were issued by the firm. On these facts, the submission made by Mr. T. K. Sampath is to be considered.

Section 141(1) of the Act, which is relevant for our purposes, reads as follows:

"141. Offences by companies.--(1) If the person committing an offence under section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to 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 :

Provided that nothing contained in this sub-section