* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Decision: 06.02.2024 + CRL.M.C. 5269/2023, CRL.M.A. 20025/2023 IN THE MATTER OF:

M/S SQUIRREL DESIGN HOUSE AND ORS ..... Petitioners Through: Mr. Ashesh Lal, Mr. Apurv Lal, Mr.

Raghav Parwatyar and Mr. Abhinav Anand, Advocates.

versus VIVEK KUMAR TRIPATHI ..... Respondent Through: Mr. Adarsh Kr. Tiwari, Advocate.

CORAM:

HON'BLE MR. JUSTICE MANOJ KUMAR OHRI JUDGMENT (ORAL)

1. By way of present petition filed under Section 482 Cr.P.C., the petitioners seek to assail the order dated 17.07.2023 passed by learned ASJ- 02, South West, Dwarka Courts, New Delhi in Criminal Revision No. 636/2022, whereby order of summoning dated 30.09.2021 passed by the Trial Court has been upheld.

2. Briefly, the facts are that the respondent/complainant had initiated proceedings under Section 138 of the Negotiable Instruments Act, 1881 (hereafter, ‘the NI Act’) thereby alleging that a loan of Rs.4.5 lacs was given to the petitioner Nos.2 and 3/accused persons for their project. Towards settlement of the said account, the accused persons issued a cheque of Rs.2.95 lacs, which when presented for encashment, was dishonoured with the remarks ‘insufficient funds’. A legal notice was issued on 03.07.2021 to the accused persons, whereafter when the liability was not discharged, the aforesaid criminal complaint came to be filed.

Signature Not Verified Digitally Signed CRL.M.C. 5269/2023 Page 1 of 7

3. The issue arising in the present petition is that while the cheque in question was issued from the account of the partnership firm and signed by both Nikhil Kumar/petitioner No.2 and Vivekanand Tiwari/petitioner No.3, no legal notice was issued to the partnership firm. Even the criminal complaint was also filed accusing the two partners, without impleading the partnership firm. The complaint was filed under Section 138 NI Act read with Section 420 IPC. A perusal of the proceedings would show that on 17.09.2021, learned M.M. noted that the partnership firm had not been arrayed as an accused and sought clarification from learned counsel for the complainant in this regard, who replied that there was no legal requirement for impleading the partnership firm. It appears that on the next date i.e. 30.09.2021, an amended memo of parties came to be filed wherein the partnership firm was arrayed as accused No. 3 and vide order dated 30.09.2021, summons were issued to the partnership firm besides the two partners. Petitioners assailed the said order before the Revisional Court. The Revisional Court, vide the impugned order, upheld the order passed by learned MM taking into account Section 24 of the Partnership Act, opining that notice to the partners shall operate as notice to the partnership firm. It was further held that since the amended memo of parties was taken on record prior to issuance of summons, there was no material irregularity.

4. Admittedly, the cheque in question was not issued by the partners from their individual accounts. Rather, it was issued from the account of the partnership firm and signed by both the partners. Thus, the liability of the partners is vicarious and flow from Section 141 of the NI Act. Before proceeding further, this Court deems it apposite to reproduce Section 141 of the NI Act, which reads as under :-

Signature Not Verified Digitally Signed CRL.M.C. 5269/2023 Page 2 of 7 “141. Offences by companies. —

(1) If the person committing an offence under section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

Provided that nothing contained in this sub-section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of s