IMPORTANT POINT
A firm must be summoned as a juristic person in cases under the N.I. Act, and partners can only be held vicariously liable if specifically named in the complaint.

JUDGMENT :

Honble Arun Kumar Singh Deshwal, J.

1. Heard learned counsel for the applicants and Sri Rajeev Kumar Singh, learned AGA for the State.

2. Present application under Section 482 Cr.P.C. has been filed for quashing the summoning order dated 27.07.2023 as well as non-bailable warrant dated 08.02.2024, including the entire criminal proceedings of Case No.563 of 2023, under Section 138 Negotiable Instrument Act (hereinafter will be referred to N.I. Act) and Section 420 IPC in Police Station-Luxa, District-Varanasi pending in the Additional Court, Varanasi.

3. Contention of learned counsel for the applicants is that as per the complaint itself, the cheque was issued on behalf of firm M/s Partha Textiles and the applicant No.2 is one of the partners of that firm but only the firm was impleaded as accused in the complaint. He further contended that in the complaint all the allegations were made against applicant no.1 (firm) itself, and no allegation was made against the present applicant, but the learned Magistrate issued a summons to the present applicant personally instead of issuing summons to the accused firm. It is further submitted that once the applicant no.2 was not impleaded as accused to vicariously liable him as a partner of the firm (applicant no.1), then issuance of summons against him in a personal capacity is absolutely erroneous.

4. In support of his contention, learned counsel for the applicants has relied upon the judgement of Patna High Court in Amarnath Prasad and others vs State of Bihar and another; 1976 Cr.L.J. 1778 (Pat.), in which the Single Judge of Patna High Court observed that if the firm is impleaded as a party, then the notice ought to be issued in the name of a firm, not in the name of a partner unless they are specifically made reliable. In another judgement of Patna High Court in Anil D. Ambani and another vs State of Bihar and another; 2006(4) Pat LJR 571, Single Judge of Patna High Court observed that when the prosecution is against a corporate body or juristic person, then summons ought to be issued to a juristic person, not in the name of the Director or Partner.

5. Learned counsel for the applicants also submitted that prosecution of a juristic person is not barred. It can be prosecuted, but only a fine can be imposed instead of punishing imprisonment. In support of his contention, he has also relied upon the judgement of Apex Court in the case of Standard Chartered Bank and others vs Directorate of Enforcement and others (2005) 4 SCC 530. He relied on paragraphs nos. 29, 30, 31, and 32, which are being quoted hereinbelow;

29. The contention of the appellants is that when an offence is punishable with imprisonment and fine, the Court is not left with any discretion to impose any one of them and consequently the company being a juristic person cannot be prosecuted for the offence for which custodial sentence is the mandatory punishment. If the custodial sentence is the only punishment prescribed for the offence, this plea is acceptable, but when the custodial sentence and fine are the prescribed mode of punishment, the Court can impose the sentence of fine on a company which is found guilty as the sentence of imprisonment is impossible to be carried out. It is an acceptable legal maxim that law does not compel a man to do that which cannot possibly be performed (impotentia excusat legem). This principle can be found in Bennion Statutory Interpretation, 4th Edn. at p. 969. All civilized systems of law import the principle that lex non cogit ad impossibilia; As Patterson, J. said "the law compels no impossibility". Bennion discussing about legal impossibility at states that: If an enactment requires what is legally impossible it will be presumed that Parliament intended it to be modified so as to remove the impossibility element. & quot; This Court applied the doctrine of impossibility of performance (lex non cogit ad impossibilia) in numerous cases (State of Rajasthan v. Shamsher Singh [1985 Sup