Liability under Section 138 of the Negotiable Instruments Act cannot be established against a partner without including the partnership firm as an accused.

ORDER :

G. JAYACHANDRAN, J.

1. The petitioner herein is the sole accused in the private complaint initiated under Section 138 of Negotiable Instruments Act.

2. This petition to quash the complaint is filed on the ground that the subject cheque was not issued by the petitioner from the account maintained by him in the bank to attract offence under Section 138 of Negotiable Instruments Act, 1881.

3. According to the learned counsel for the petitioner, the cheque which is subject matter of the complaint in S.T.C.No:2533/2022 is drawn in favour of S.Murali T.N. Srinivasan for a sum of Rs. 8,25,000/- dated 03/02/2021. The drawer of the cheque is ‘Rose Health Care’ which is a partnership firm, in which, the petitioner is one of the partner and signed the cheque. The statutory notice dated 19/04/2021 issued to the petitioner and not to the drawer which is a partnership firm as contemplated under Section 141 of NI Act. The petitioner issued the cheque but not to discharge his liability. For the cheque issued on behalf of the firm, the petitioner cannot be held vicariously liable without prosecuting the firm which has issued the cheque. Inspite of a detailed reply to the statutory notice denying the liability, the Judicial Magistrate has wrongly taken cognizance of the offence.

4. The Learned counsel for the petitioner relies on the following judgments to buttress his submissions:

(i) Aneeta Hoda vs. M/s Godfather Travels & Tours (P) Ltd. AIR 1012 SC 2795

(ii) C. Balasubramanian vs. Velpandian ,Crl. OP (Md) No. 13585/2022 dated 25/11/2022 by Justice Sathi Kumar Sukumara Kurup.

5. On receipt of the notice, the respondent/defacto complainant entered appearance through his counsel Mr.Yuvaraj. On the date of final hearing, there was no representation on behalf of the respondent.

6. The cheque dated 03/02/2021, which is the subject matter of the complaint, is drawn from the account maintained by ‘Rose Health Care’ in IDBI Bank, Tondaiarpet, Chennai. The return memo dated 26/03/2021 issued by the complainant bank (UCO Bank, Sowcarpet Branch) indicates that the cheque returned, since funds insufficient. The complainant had issued the statutory notice dated 19/04/2021 to the petitioner by name. As per the notice, the petitioner borrowed loan of Rs.1,50,000/- on 25/09/2018 and Rs.3,27,000/- on 17/02/2018 with promise to repay with interest. The cheque for Rs.8,25,000/- was issued to discharge the said loan.

7. In his reply to the notice, the petitioner has stated that he borrowed only Rs.1,50,000/- and the same was repaid by adjusting the chit amount payable by the complainant. He has further contended that, the cheque given as security for the chit transaction in the year 2018 has been misused by filling it with the amount and presenting it in the year2021.

8. The statutory notice was not issued to ‘Rose Health Care’from whose account the cheque was issued. Why the cheque of ‘Rose Health Care’ been issued for discharging the personal liability of the petitioner has not been explained in the complaint. Since the cheque is drawn by a partnership firm, the presumption which will arise is that the cheque issued for discharge of the firm’s liability. In such case, the partner will be vicariously liable as per Section 141 of the Negotiable Instrments Act, 1881. By deeming fiction if the case of the complaint as found in the notice and complaint that the petitioner personally borrowed and issued the cheque to discharge his personal liability, then it is necessary to explain in the complaint, why the petitioner gave the cheque of his firm t