Liability of partners for offences under Section 138 of the Negotiable Instruments Act is limited to the partner who is in charge of and responsible for the conduct of the business of the firm, unless the offence is committed with the consent or connivance or neglect of other partners.

V.S.Aggarwal, J.

1. Indo Lowenbrau Breweries Ltd. (hereinafter described as "the respondent") filed a complaint against the petitioner and another P-2 with respect to the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short "the Act"). It was contended that Rohtas Wine Traders is a partnership concern, the petitioner, Raj Kumar Mangla and Kishan Dev, are its partners. In the year 1991-92, the partnership concern had business dealings with the respondent. On March 31, 1992, a sum of Rs. 1,19,650 was standing debited in the account of the partnership concern. Acting on behalf of the other partner and the firm, Kishan Dev issued a cheque for the said amount drawn on the Bank of India, Gurgaon branch. The cheque was presented with the banker, i.e., State Bank of India for collection of the amount. It was dishonoured due to insufficiency of funds. The petitioner and the others were informed to withhold the cheque for some time. At the instructions of the accused, the respondent again presented the cheque but it was dishonoured. The cheque was presented again on September 28, 1992, but because of insufficiency of funds, it was dishonoured. After due notice and alleging that the cheque was dishonoured because of the act of the petitioner and others, the criminal complaint referred to above was filed.

2. The learned Judicial Magistrate at Faridabad recorded the preliminary evidence and thereupon vide order dated February 28, 1994, summoned the petitioner and others as accused.

3. The petitioner, Raj Kumar Mangla, by virtue of the present petition seeks quashing of the complaint and the order summoning him as accused. It is contended that the petitioner had put in appearance before the learned Judicial Magistrate. He submitted an application for recalling of the order but the said application was dismissed.

4. The ground taken up by the petitioner for quashing the complaint and the order summoning him as accused is that there is no specific allegation against him that the petitioner was responsible to the firm and in terms of Section 141 of the Negotiable Instruments Act, he was liable for the act of the other partners.

5. Notice had been issued to the respondent. In the reply filed, the averments of the petitioner have been controverted. It is pointed that in the complaint it has specifically been mentioned that the firm Rohtas Wine Traders was having financial business dealings with the respondent. The amount as such was due. The partner is bound by the acts and omissions of the other partners. The petitioner has not come forward to settle the account. Keeping in view that the petitioner is a partner of the firm, he is liable and there is no ground to quash the proceedings.

6. As already noted above, the submissions made were confined to the scope of Section 141 of the Negotiable Instruments Act. It was contended that there is no averment that the petitioner was in charge of and responsible to the firm for the conduct of the business of the firm or that the offence was committed because of his negligence. In the absence of any such averment in the complaint, the petitioner cannot be held liable. On the contrary, the respondents learned counsel alleged vehemently that the petitioner must face a trial and the respondent can prove that the offence was committed with the consent and connivance of the petitioner. He further urged that being the partner, in any case the petitioner was responsible and was rightly summoned by the trial court.

7. Under Chapter XVII of the Negotiable Instruments Act, by virtue of the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, a new offence in the form of Section 138 had been added. If a cheque is dishonoured for insufficiency of funds and it had been issued for payment of any amount of money, it shall be deemed that an offence under Section 138 of the Negotiable Instruments Act had been committed subject to other conditions