TMI Blog2005 (12) TMI 606X X X X Extracts X X X X X X X X Extracts X X X X ..... accused under Section 138 of the N.I. Act. 2. The cheque is for an amount of Rs. 90,000/- The cheque is issued by the accused as Managing Partner of M/s. Integrated Homoeo Pharmaceuticals, a firm. The complainant alleged that the accused had borrowed an amount of Rs. 90,000/- and had issued the cheque in question, Ext. P1, for the discharge of the said liability. The cheque, when presented, was dishonoured on the ground of insufficiency of funds. A notice of demand was issued. The same was not received and was returned unclaimed. It is in these circumstances that the complainant came to court with this prosecution under Section 138 of the N.I. Act after scrupulously observing the statutory time table. 3. The complainant examined himse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... int, which admittedly was not raised before the courts below. In as much as the said contention is one of law, the learned counsel for the petitioner submits that the same may be considered notwithstanding the fact that it has not been specifically raised before the courts below. 6. The contention raised is that in the total absence of any averment or evidence to show that the partnership firm M/s. Integrated Homoeo Pharmaceuticals owed any liability to the complainant, no prosecution can lie against the petitioner/accused, who is only the Managing Partner of the said firm which is a company within the expanded meaning of the expression company under Section 141 of the N.I. Act. It is not specifically alleged or proved that the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tegrated Homoeo Pharmaceuticals - has committed any offence under Section 138 of the N.I. Act, this prosecution against the petitioner, the Managing Partner, in his individual capacity is not maintainable. The learned counsel for the petitioner further relies on the decision of this Court in Kumari v. Sankara Raman (2001 (2) KLT 503) and contends that the requisite averment - that the company/firm has committed the offence and the petitioner was in charge of and was responsible to the company for the conduct of the business of the company is not there at all in the complaint. The learned counsel for the petitioner wants this Court to further note the dictum in the decision reported in Kitex Garments Ltd. v. Ajay Koushik (2002 (1) KLT 17 (SN ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner is undoubtedly the drawer of the cheque, notwithstanding the fact that the account stands in the name of the firm, a compendious expression to refer to partners, including the petitioner, who transact business in such name. The petitioner is, therefore, the drawer of the cheque and the cheque is drawn on an account maintained by him (in his capacity as a partner) with the bank. The fact that the expression person in Section 11 of the I.P.C. would include a firm - a body of persons not incorporated, will not in any way detract against the status of the petitioner as the drawer of the cheque and one maintaining the account with the bank along with other partners. Section 141 of the N.I. Act is only an enabling provision. It does n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... What of pleadings in the complainant about the complicity of the firm cannot help the petitioner in the facts and circumstances of this case where the issue of the cheque to discharge the liability of the firm is specifically admitted. 10. The firm is also thus shown to have committed the offence under Section 138 of the N.I. Act. It is now trite (See the dictum in Anil Hada supra) that it is not essential to prosecute the firm/company also before the person in charge is sought to be prosecuted. It is then contended that there is no averment in the complaint that the petitioner was in charge of and responsible to the company for the conduct of its affairs. It is not necessary in every complaint to repeat the words of Section 141 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nciples governing imposition of a sentence in a prosecution under Section 138 of the N.I. Act in the decision reported in Anilkumar v. Shammy (2002 (3) KLT 852). In the facts and circumstances of this case, I do not find any compelling reasons to insist that the petitioner must serve any deterrent substantive sentence of imprisonment. An appropriate lenient substantive sentence of imprisonment to insist that the petitioner must serve any deterrent substantive sentence of imprisonment. An appropriate lenient substantive sentence of imprisonment to facilities invocation of Section ` Cr.P.C. and an appropriate direction under Section 357(3) Cr.P.C. coupled with a default sentence shall serve the ends of justice eminently. In the facts and circ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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