A complaint under Section 138 of the Negotiable Instruments Act against a partner of a partnership firm is maintainable without impleading the firm itself as an accused, as a partnership firm lacks a separate legal personality distinct from its partners.

(CAV Order)

1. The applicant has filed the present criminal revision under Section 438 read with Section 442 of Bhartiya Nagarik Suraksha Sanhita, 2023 challenging the order dated 17.04.2025 passed by the learned 8th Additional Sessions Judge, Durg (C.G.) in Criminal Appeal No. 74/2024 by which the learned Additional Sessions Judge has set aside the judgment of conviction and sentence under Section 138 of Negotiable Instruments Act, 1881 (in short “Act of 1881”) dated 21.02.2024 (Annexure P/2) passed by the learned Judicial Magistrate First Class Durg (C.G.) in Criminal Complaint Case No. 1511/2017.

2. Brief facts of the case are that:

(a) It is the case of the complainant that the complainant and the accused had a prior acquaintance having domestic relationship. The accused was engaged in the business of construction activity, sale of land for which he required funds, as such, he oftenly asked the complainant to provide funds. Further case of the complainant that in February 2014, the accused asked the complainant to arrange Rs. 30,00,000/- for a project, accordingly the complainant has given the amount to the accused as a loan. As per the understanding arrived at between them, the accused promised to repay the amount within 3-4 months without interest.

(b) When the agreed time was lapsed the complainant requested to repay the amount, but instead of paying the amount he started avoiding complainant. On persuasion made by the complainant, on 19.07.2016, the accused gave her a cheque No. 847714 for Rs. 30,00,000/- drawn on United Bank of India, Branch B. Market Street No. 25, Plot No. 5, Sector 6, Bhilai, and asked her not to present it for encashment immediately, saying that he would receive money from the sale of some land/house purchaser and would repay the amount in cash and take back the cheque.

(c) It is also the case of the complainant that after some time, the accused instructed the complainant to present the cheque for encashment. The complainant deposited the said cheque in her bank account maintained in Bank of Baroda, Branch - Civic Centre Bhilai on 24.08.2016 for clearance, but it was dishonoured due to “insufficient funds” in the accused's bank account. When the complainant orally informed the accused about the dishonour of the cheque, he said that he would arrange and pay the entire amount, but he did not pay any amount. Thereafter, the complainant sent a registered notice through her advocate to the accused on 20.09.2016, informing him about the dishonour of the cheque and requesting payment of the amount. The said notice was returned to the complainant on 26.09.2016, with the remark that the accused's house was locked on five consecutive days. Despite oral intimation to the accused personally and through mobile, he did not pay the amount to the complainant which has necessitated the complainant to file a complaint against the appellant/accused before the learned Judicial Magistrate First Class under Section 138 of the Negotiable Instruments Act.

3. The complainant to prove her case has examined herself by way of an affidavit as provided under Section 145 of Act of 1881 wherein she has reiterated the stand taken by her in the complaint. The complainant has exhibited documents i.e. Statement of Bank of Baroda (Exhibit P/1), Cheque dated 19.07.2016 (Exhibit P/2), Cheque dishonour memo issued by the Bank (Exhibit P/3), Registered Legal Notice dated 20.09.2016 (Exhibit P/4), Postal Receipt (Exhibit P/5) and Acknowledgment (Exhibit P/6) in support of his complaint.

4. The witness was extensively