ORDER :

[Prayer:- This Criminal Original Petition filed under Section 482 of Cr.P.C., praying to call for records relating to C.C.No.875/2021 pending on the file of learned Metropolitan Magistrate (FTC-I) Allikulam, Egmore and quash the same.

Prayer:- This Criminal Original Petition filed under Section 482 of Cr.P.C., praying to call for records relating to C.C.No.1093 of 2021 pending on the file of learned FTC-I Metropolitan Magistrate Allikulam, Egmore and quash the same.]

These Criminal Original Petitions have been filed to quash the proceedings in C.C.Nos.875 & 1093 of 2021 on the file of the learned Metropolitan Magistrate (FTC-I,), Allikulam, Egmore.

2. The petitioners are arrayed as accused 1 and 2 in C.C.Nos.875 &1093 of 2021 on the file of the learned Metropolitan Magistrate (FTC-I) Allikulam, Egmore. The respondent has preferred a complaint against the petitioners/A1 and A2 and others for the offence under Section 138 of the Negotiable Instruments Act-1881. The 4th accused is a firm namely M/s.Kans Wedding Centre and it was the customer of M/S.Liya Creation, who is the complainant herein. The complainant has supplied materials on credit basis and for which the 4th accused firm had issued cheques towards the repayment of the same. The accused 1 and 2 are the partners of the 4th accused firm. As per the ledger account of the complainant's proprietary concern, for the period between 01.04.2018 to 30.11.2019 the accused had purchased garments and other goods for a total sum of Rs.42,52,483.67 on credit basis. Out of the said amount Rs.9,50,120/- has been paid on various dates. The balance outstanding is Rs.33,02,354.67/-. The accused had issued a cheque dated 15.12.2019 bearing No.102466 for Rs.2,70,205/-towards the repayment of the part of the outstanding amount. When the cheque was presented for collection it was returned as 'funds insufficient' on 17.12.2019. After complying the legal mandates, the respondent has filed a complaints against the petitioners for the offence under Section 138 of the Negotiable Instruments Act-1881 (hereinafter referred as NI Act).

3. Heard the submissions made by the learned counsel on either side and perused the materials available on record.

4. The learned counsel for the petitioners submitted that the 3rd accused is the authorized signatory of the 4th accused firm and the 1st and 2nd accused are not in-charge of the regular affairs of the firm; there is no specific allegations against the petitioners 1 and 2 in the complaint that they have taken any active interest in the business of the partnership firm. The day to day activities of the firm are not done by the petitioners 1 and 2; for the purpose of Section 141 of the Negotiable Instruments Act-1881 those persons who were in-charge or responsible for the conduct of the business of the firm alone can be prosecuted and the petitioners 1 and 2 are unnecessary parties.

5. The learned counsel for the respondent submitted that only if the accused are allowed to undergo trial, it can be known whether they are incharge of the affairs of the company. It is premature to presume that the petitioners 1 to 2 are not responsible for the day to day affairs of the firm. The petitioners 1 to 2 are equal partners and even the partnership deed would show that they are working partners. Since the petitioners are also aware of the transaction, they cannot disown their responsibility.

6. The one and only contention of the learned counsel for the petitioners is that there is no avernment in the complaint to show that the petitioners 1 to 2 are responsible and in-charge of the day to day affairs of the firm and hence, they are unnecessary parties to the proceedings. As per Section 141 of NI Act if a person committed the offence under Section 138 of NI Act happens to be a company or a firm the person who was in-charge or responsible for the conduct of the business at the time of commission of the offence shall be deemed to be guilty.

7. The learned counsel for the re