Failure to issue statutory notice to a partner of the accused firm under Section 138 of Negotiable Instruments Act renders prosecution unfair and unjust.

1. This petition seeks to quash the proceedings pending in C.C. No. 13171 of 2007 on the file of VII Metropolitan Magistrate, George Town, Chennai. In such case, the petitioner who is one of the three accused facing prosecution for offence under Section 138 of Negotiable Instruments Act. The first accused is a partnership firm, in which, the second and third accused are the partners. The respondent/complainant had presented the cheque issued by the first accused firm and upon the return thereof dishonoured, had issued statutory notice as contemplated under Section 138 of Negotiable Instruments Act, to the first accused firm and subsequently filed the complaint.

2. Heard the learned counsels for the petitioner and the respondent.

3. A perusal of the complaint shows that no statutory notice has been issued to this petitioner, who is the partner of the first accused firm. The petitioner cannot be prosecuted for the offence under Section 138 of Negotiable Instruments Act, when no statutory notice was issued to him. The offence under Section 138 of Negotiable Instruments Act, would be committed only upon failure to effect the payment within 15 days from the receipt of a statutory notice. Thus an opportunity is reserved to a person to effect payment within the stipulated period and avoid prosecution. When such opportunity has been denied, then it would be unfair and unjust to prosecute such person.

4. The petition shall stand allowed and the proceedings in C.C. No. 13171 of 2007 shall stand quashed so far as this petitioner is concerned. Consequently, the connected miscellaneous petition is closed.