ORAL ORDER

1. Rule. Learned APP waives service of notice of Rule for the respondent-State. Though duly served, none appears for the respondent No.2.

2. By way of this application, the petitioner has prayed to quash and set aside the order dated 29.11.2019 passed by the learned Additional Chief Metropolitan Magistrate, Ahmedabad (Court No.29) in Criminal Complaint No.108478 of 2019 issuing summons to the petitioner at Annexure-L, as well as set aside the criminal proceedings arising out of Criminal Case No.108478 qua the petitioner.

3. Heard learned advocates for the respective parties.

4. Brief facts of the case are that:

4.1 The petitioner is a partner of the partnership firm, namely Shah Brothers (for short the “Firm”). The Firm is engaged in the business of trading PVC Door Frame, plastic sections, plastic water tanks, tiles, etc. The Firm is composed of three partners: Mr. Surendra Kumar Shah, Mr. Birendra Kumar Shah, and Mr. Jitendra Kumar Shah. During the course of business, the Firm regularly placed purchase orders with various entities for PVC door frames and plastic products. Respondent No.2 is one such entity with which the Firm had a longstanding business relationship.

4.2 On May 18, 2017, the Firm placed a purchase order, preceded by technical specifications to which respondent No.2 was bound to adhere. The terms of this order were to be mutually decided by the Firm and respondent No.2. Subsequently, in May 2017, two undated blank cheques were given by the Firm to respondent No.2, signed by another partner, Mr. Birendra Kumar. As per the practice, these cheques were to be encashed upon the delivery of defect-free material. An incorrect invoice dated May 31, 2017, amounting to Rs. 20,64,197.07, was sent to the Firm. However, the Firm never agreed upon this amount, and since the invoice was incorrect, the Firm issued stop payment instructions to its banker. Subsequently, respondent No.2 filled up the blank cheques and deposited them with the bank. However, as the Firm had already issued stop payment instructions, the aforementioned cheques were returned unencashed.

4.3 Subsequently, respondent No.2 deposited another cheque with Punjab National Bank, but it was returned unencashed. In response, respondent No.2 issued a statutory Notice under Section 138 of the Negotiable Instruments Act, 1882 (referred to as the “NI Act”), addressing the notice solely to the petitioner and describing them as the proprietor of the Firm. It was well known to respondent No.2 that the petitioner is one of the partners of the Firm and not the sole proprietor. Thereafter the respondent No.2 file a complaint being Criminal Complaint No.108478 of 2019, before the learned Additional Chief Metropolitan Magistrate, Ahmedabad (Court No.29). Hence, this petition.

5. The learned advocate for the petitioner argues that the learned Magistrate made an error in issuing the process, as proceedings under Section 138 are not maintainable. This is because the present petitioner is neither a partner of the Firm nor has signed any cheque. It is asserted that, as per settled law, proceedings under Section 138 of the NI Act cannot be initiated against a non-signatory of an instrument, except in cases where the person is indicated under Section 141 of the NI Act. In this case, the petitioner is identified as the sole proprietor of Shah Brothers, and, therefore, proceedings should not have been initiated against the petitioner.

6. It is submitted that Shah Brothers is a partnership firm, as evident from the Firm's PAN, and the invoices issued by respondent No.2 also bear the name of the Firm along with its PAN and GST numberIt is submitted that Shah Brothers is a partnership firm, as evident from the Firm's PAN, and the invoices issued by respondent No.2 also bear the name of the Firm along with its PAN and GST numbers. Given these facts, it is argued that no liability can be imposed on the petitioner, as they are not vicariously liable for an offense committed by a com