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2016 (1) TMI 1459 - HC - Indian LawsDishonor of two Cheque - whether the accused have issued the cheques in question as partners of partnership firm? - HELD THAT - From the impugned complaint, it is clear that the complainant himself has stated in the complaint that both the accused are partners of J. Parikh and Sons-partnership firm. In paragraph 2 of the complaint, the complainant has further submitted that accused are carrying on business in the name of J. Parikh and sons and accused nos. 1 and 2 are partners of J. Parikh and Sons. The cheques in question were issued by the accused as partners of the partnership firm. From the cheque numbers mentioned in the complaint and from the account statement of M/s. J. Parikh and Sons-partnership firm produced at Annexure B with the compilation, it can be seen that both the cheques were issued from the account of the partnership firm. The respondent no. 2-original complainant is served in the present proceedings, however, he has not remained present and controverted the submissions canvassed on behalf of learned advocate for the applicant. When the respondent no. 2-original complainant has not joined the partnership firm as an accused in the impugned complaint, this Court can exercise the powers under Section 482 of the Cr.P.C for quashing and setting aside the impugned complaint - Application allowed.
Issues:
Quashing of complaint under Negotiable Instruments Act due to non-inclusion of partnership firm as accused. Analysis: The applicant sought to quash a complaint under Section 138 of the Negotiable Instruments Act, arguing that the complaint only named the partners of a partnership firm as accused, not the firm itself. The applicant relied on Section 138 read with Section 141 of the Act and cited relevant case law, including the decision in Aneeta Hada v. Godfather Travels and Tours Pvt. Ltd. The respondent, however, contended that there was no evidence to show the accused issued the cheques on behalf of the partnership firm. The court examined the complaint, which clearly stated that the accused were partners of the firm and the cheques were issued from the firm's account. The court referred to Section 141 of the Negotiable Instruments Act, which deals with offenses by companies, and emphasized the strict construction of the provision regarding vicarious liability. Citing the decision in Aneeta Hada case, the court highlighted that for maintaining a prosecution under Section 141, arraigning the company as an accused is imperative. The court concluded that since the complainant did not join the partnership firm as an accused, the complaints were not maintainable, following the precedent set by the Supreme Court. Consequently, the court exercised its powers under Section 482 of the Cr.P.C to quash and set aside the complaints. In light of the discussion and the failure to include the partnership firm as an accused in the complaint, the court allowed the application to quash the complaint under the Negotiable Instruments Act. The court specifically quashed the complaint against the present applicant, as the application was filed only with respect to this accused. Therefore, the complaint under Criminal Case No. 273 of 2010 was quashed and set aside solely concerning the present applicant, with direct service permitted. This detailed analysis of the judgment showcases the court's interpretation of the legal provisions, application of relevant case law, and the reasoning behind quashing the complaint due to the non-inclusion of the partnership firm as an accused party.
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