IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF MARCH 2019 BEFORE THE HON'BLE MR. JUSTICE ARAVIND KUMAR WRIT PETITION NO.10401/2019 (GM-RES) BETWEEN:
1. M/s Pathi Fabrics A Partnership Firm having its Office at No.149, Nagarhpet, Bangalore-560002.
Rep. by P S Vishwanath.
2. Sri P S Vishwanath @ Pathi S Vishwanath, Aged about 81 Years, S/o Late Pathi Shankaranarayan, R/At No.149, Nagarhpet, Bangalore-560002. ... Petitioners (By Sri. Manjunatha H, Advocate) AND:
Sri K B Gowri Shankar S/o. Sri Kambi Basappa, Aged about 58 years, R/At No.15, Chowla Galli, Cubbonpet, Bangalore-560002. ... Respondent This Writ Petition is filed under Articles 226 and 227 of the Constitution of India read with Section 482 of Cr.P.C., praying to quash the order dated 12.02.2019 by the LXI City Civil and Sessions Judge at Bangalore in Crl.Rev.Petition No.386/2016 vide Annexure-A and proceedings in C.C.No.8537/2016 pending in the file of XXI ACMM, Bangalore vide Annexure-B and etc.
This Writ Petition coming for Preliminary Hearing, this day, the Court made the following:
O R D E R Respondent herein has filed a private complaint under Section 200 of Cr.P.C., read with Sections 138 and 142 of Negotiable Instruments Act, 1881 (for short ‘N.I.Act’) against petitioners alleging thereunder that in discharge of a debt cheque came to be issued and on its presentation, it has been returned unpaid with an endorsement “NO SUFFICIENT BALANCE” and thereby petitioners (accused herein) have committed an offence punishable under Section 138 of N.I.Act, since same has not been paid despite statutory notice issued.
2. Learned trial Judge, by order dated 28/03/2016 has received the affidavit of the complainant in lieu of examination-in-chief and has marked documents-Exs.P1 to P7 and after having heard learned counsel appearing for petitioners, ordered for registering a case against accused for the offence punishable under Section 138 of N.I.Act and directed issuance of summons to accused through process of court. Subsequently, accused has appeared and was released on bail and plea of accused was recorded on 13/05/2016. Hence, petitioners-accused are before this Court for quashing of the said proceedings, contending inter-alia that it is not specifically stated in the complaint or in the statutory notice issued. Preceding the said complaint about 2nd petitioner being responsible for day to day affairs of the Firm and as such, no vicarious liability can be fixed on 2nd petitioner.
3. On perusal of complaint filed by the respondent herein would disclose that 1st petitioner has been arrayed as a partnership Firm and 2nd petitioner as its partner and being signatory to cheque in question. A bare reading of Section 141 of N.I.Act, would clearly indicate where a person is prosecuted for dishonour of the cheque is a Firm, necessarily such Firm would be an accused and every such person who at the time of offence came to be committed, was incharge and responsible for the conduct of business of the firm as well as firm would be deemed to be guilty of the offence and would be liable to be punished by fixing vicarious liability on such of those persons. It is only in circumstances where the Director-partner not being signatory to the cheque is sought to be roped as accused, proceedings cannot be proceeded against such person. A complainant required to state the role played by such of those Directors-partners, who are alleged to be incharge of and responsible for the conduct of business of the Firm. However, in the case on hand, cheque was issued by Director, who is a partner of the Firm. However, said question does not arise in the instant case since 2nd petitioner has issued the cheque and against whom respondent herein has filed complaint. In that view of the matter, both the Courts have rightly taken note of these aspects and has rejected the claim for discharge. I do not find any good ground to entertain this petition.
Accordingly, writ petition stands rejected.
Sd/- JUDGE SMJ