ORAL ORDER

1. This application is filed under Section 482 of the Code of Criminal Procedure, 1973 for quashing and setting aside the Criminal Case Nos.264 of 2020 filed by the respondent No.1 against the present applicants.

2. Learned advocates appearing for the parties jointly requested that this application be decided finally at admission stage.

3. The brief facts giving rise to filing of this application are as under:

3.1. It is the case of the applicants that respondent No.1 – original complainant has filed complaint being Criminal Case No. 264 of 2020 before the concerned Magistrate Court under Section 138 of the Negotiable Instruments Act (hereinafter referred to as ‘the N.I.Act’) against the present applicants and another. It is submitted that the concerned Trial Court issued the process against the present applicants and therefore the applicants have filed this application for quashing and setting aside the impugned complaint.

4. Learned advocate Mr. Ankur Y. Oza appearing for the applicants mainly contended that the impugned compliant is nothing but abuse of process of the Court and the ingredients of the alleged offence punishable under Sections 138 read with Section 142 of the N.I.Act are, prima facie, not made out. Learned advocate has pointed out from the record that the present applicant No.1 – original accused No.1 had issued the cheque in favour of Ceratune Ceramic i.e. the partnership firm. The said partnership firm had deposited the cheque in the account of Ceratune Ceramic LLP, which is totally a different entity, therefore the said cheque was dishonoured. Thereafter the said partnership firm i.e. Ceratune Ceramic had issued statutory notice under Section 138 of the N.I.Act to the present applicants and thereafter now the impugned complaint has been filed by the said partnership firm against the present applicants. At this stage, learned advocate would contend that partnership firm and LLP are different entities and therefore when the partnership firm has deposited the cheque in the account of LLP, it is not open for the partnership firm to file a complaint under Section

138 of the N.I.Act.

5. Learned advocate Mr. Oza for the applicants further submitted that the cheque in dispute has been stolen and therefore the present applicants have issued the direction to the concerned bank for stop payment of the said cheque.

6. Learned advocate Mr. Oza has referred the provisions contained in Sections 138 and 142 of the N.I.Act in support of his submissions. Learned advocate, therefore, urged that the ingredients of the alleged offence, prima facie, are not made out and therefore impugned complaint be quashed and set aside.

7. On the other hand, learned APP has opposed these applications. Learned APP has pointed out from the record that the present applicants – original accused, though received the statutory notice, not gave any reply to the said statutory notice. It is further submitted that the cheque in question was issued by the accused in favour of Ceratune Ceramic i.e. partnership firm and the said cheque is dishonoured with an endorsement ‘payment stopped by drawer’. Ingredients of the alleged offence are prima facie made out. It is further submitted that before filing of the complaint by the partnership firm, statutory notice was also issued to the present applicants – accused. Learned APP, therefore, urged that this application be dismissed.

8. Having heard the learned advocates appearing for the parties and having gone through the material placed on record, it would emerge that the present applicants are the original accused against whom the respondent No.1 – complainant has filed complaint under Section 138 of the N.I.Act before the concerned Magistrate Court. If the impugned complaint is carefully examined, it is revealed that the said compliant has been filed by the partnership firm viz. Ceratune Ceramic through power of attorney of the partners against the present applicants. If the cheque in question, copy of