(1.) BY way of this common order bearing Crl. M. C. Nos. 2235/07 and 1399/08 filed by the petitioners under Section 482 Cr. P. C. seeking quashing of complaint case No. 705/4/2004 and complaint case No. 708/4/2004 in Crl. M. C. No. 2235/07 and CC No. 6224/1/04 in Crl. M. C. No. 1399/08 filed by the respondent under section 138 of the Negotiable Instruments Act are being disposed of. The fundamental question raised by the petitioners in the present case is as to whether the petitioners, who are not the signatories of the dishonoured cheques, can be made to face criminal prosecution under Section 138 of the Negotiable instruments Act simply on account of the fact that once the petitioner No. 2 was partner in M/s Universal Engineering Co. on whose behalf one of their partner had issued the cheques in his individual and personal capacity and from his own saving bank account. Before deciding the said question it would be appropriate to give brief facts of the case as under:-The petitioner No. 2 viz. Mrs. Zulnar Haque and one Mr. P. Mohankrishnan started M/s Universal Engineering Co. in the year of 1994 as their unregistered partnership concern, which was engaged in business of canvassing and booking orders on behalf of respondent/complainant and stocking the Birla yamaha Portable Generators which are manufactured by the respondent/complainant company. The petitioner No. 1 viz. M. Abdul Haque is the husband of petitioner no. 2 and he has nothing to do with the business and affairs of the M/s Universal engineering. Therefore, the Petitioner No. 1 is nowhere connected with the activities of M/s Universal Engineering and he is not at all connected for the trading and business of M/s Universal Engineering. During the course of business certain dispute arose between the complainant and the Petitioner No. 2 as well one Mr. P. Mohankishnan with regard to the conduct of the business and also concerning some dues. The detailed business meetings were held on 12. 02. 1998 and 13. 02. 1998 between representatives of the Respondent/complainant (Birla Yamaha Ltd.) with the partners of M/s Universal Engineering. In these meetings, the Respondent/complainant (Birla Yamaha Ltd.) herein was represented by Sh. Sandeep Kapoor " DGM (MKTG), Sh. Rakesh Sharma -- Senior Manager accounts, Sh. G. Swaminathan " Sr. Manager Marketing, Sh. K. Balamurugan. " area Sales Manager and Sh. K. Ramachandran, Sr. Asst. Engr. On the other hand m/s. Universal Engineering was represented by its both the partners Mr. P. Mohankrishnan and the 2nd Petitioner viz. Mrs. Zulnar Haque. In these business meetings, the parties arrived at the conclusion that Mr. P. Mohankrishnan agreed to liquidate the outstanding of Rs. 9,82,765/- and ready to make the payment in the form of cheques bearing Nos. 332611 to 332620, Dhanalakshmi Bank, coimbatore, Tamil Nadu and in case of any default, the complainant reserved their rights in taking immediate legal action for the recovery of the above from mr. P. Mohanakrishnan. True copy of the minutes of these meetings held on 12th and 13th February 1998 was accepted and signed on 13. 02. 1998 by Sh Sandeep kapoor " DGM (MKTG), Sh. Rakesh -- Sr. Manager Marketing, Sh. K. Balamurugan -- Area Sales Manager and Sh. K. Ramachanderan, Sr. Asst. Engr. on behalf of respondent/complainant. As per the minutes of the meeting dated 13. 02. 1998 and in order to discharge his own monetary obligation, Mr. P. Mohanakrishnan, the partner of M/s Universal Engineering in his individual capacity and liability issued cheque bearing No. 332617 dated 25. 06. 2001 of Rs. 4,00,00. 00/- (Rupees four Lacs Only), cheque No. 332618 dated 27. 06. 2001 of Rs. 5,00,000. 00/- (Rupees five Lacs only), cheque No. 332619 dated 19. 06. 2001 of Rs. 2,50,000. 00/- (Rupees two Lacs Fifty Thousand only) and cheques No. 332620 dated 30. 06. 2001 of rs. 2,78,134. 00/- (Rupees Two Lacs Seventy Eight Thousand One Hundred Thirty Four only) from his personal account maintained by him i. e. in Dhanalakshami Bank ltd. Gandhipuram, Coimbatore " 641012 in favour of respondent/complainant herein. The Respondent/complainant herein filed two Complaint Cases i. e. , CC no. 705/1/07 and C. C. 708/1/07 against the M/s Universal Engineering Co. , Mr. P. Mohanakrishnan and against both the petitioners herein in the Patiala House court, New Delhi as the above mentioned cheques issued by Mr. P. Mohankrishnan in favour of Respondent/complainant from his personal account maintained by him in Dhanalakshami Bank Ltd. Gandhipuram, Coimbatore " 641012 in order to discharge his liability were dishonoued for the reason of "account Closed". Mr. S. Nanda Kumar, counsel appearing for the petitioner vehemently contended that vide minutes of meeting dated 13. 2. 1998, which were duly agreed and accepted by the parties, Mr. P. Mohankrishnan drawer of the cheques in question had agreed to pay the outstanding liability of the partnership firm to the extent of Rs. 9,82,765/ -. Counsel further submitted that pursuant to the said agreement between the parties the cheques in question were issued by the said Mr. P. Mohankrishnan in his own individual capacity from his own saving bank account and it was made clear that in case of any default on the part of mr. P. Mohankrishnan then the legal action will be taken by the respondent against Mr. P. Mohankrishnan alone and not against the other partners of the firm. Placing reliance on Section 138 of the Negotiable Instruments Act the counsel submitted that since the cheques were issued by Mr. P. Mohankrishnan in his individual capacity and, therefore, the complaint as filed by respondent No. 2 as against the petitioners, who are neither the signatories to the said cheques nor drawer of the said cheques can be made liable to face prosecution under Section 138 of the Negotiable Instruments Act. Opposing the said submission, counsel appearing for the respondent submitted that the petitioners being the partners of M/s Universal Engineering co. cannot escape from their liability. Counsel for the respondent further submitted that in para 2 of the complaint case it has been clearly stated that m/s Universal Engineering Co. is a partnership concern and the present petitioners along with Mr. P. Mohankrishnan are its partners and incharge of and responsible to the said company for the conduct of its day to day business. In para 5 of the complaint it has also been stated that the said accused No. 2 Mr. P. Mohanakrishnan had issued cheques in question being the partner of the said firm towards the legally enforceable dues of the said firm and therefore, as per the contention of the counsel for the respondent all the partners are jointly and severally liable to pay the amount of debt against which the said cheques in question were issued by one of the partners. Counsel thus sought to urge that the issuance of the cheques by Mr. P. Mohankrishnan were not in his individual capacity, but in the capacity of partner of the firm and respondent No. 2 had accepted the said cheques only recognizing the said Mr. P. Mohankrishnan in his capacity as partner and not any individual unconnected with the said outstanding liability of their firm. Counsel for the respondent further submitted that the present petition has been filed by the petitioners with dishonest intentions as after seeking stay of their arrest, they have been delaying the service of the notice upon the respondent. Highlighting the conduct of the petitioners further, counsel submitted that even before the Trial Court the petitioners never disclosed the fact of filing of the present petition so as to prevent the respondent to appear before this Court in the present petition. Counsel also submitted that even petitioner No. 2 has not signed the present petition nor any affidavit in support of the petition has been filed by her and therefore, also the present petition cannot be held to be maintainable. Counsel for the respondent also urged that the remedy under Section 482 Cr. P. C. cannot be exercised in a routine manner as the same is exercisable only under exceptional circumstances so as to meet the ends of justice. The contention of the counsel for the respondent is that the issues raised by the petitioner can only be decided during the course of the trial and, therefore, in the face of involvement of serious disputed question of facts the jurisdiction under Section 482 Cr. P. C. cannot be exercised. I have heard learned counsel for the parties at considerable length and have gone through the records.
(2.) BEFORE dealing with the issue it would be worthwhile to reproduce Section 141 of N. I. Act, which is as under:
(3.) THE explanation to section 141 clearly shows that the definition of a company encompasse a partnership firm and even a association of individuals also. A partnership firm is nothing but a compendious expression to refer to the partners who transact business in partnership in that name. In view of section 141 the partners who are responsible to the firm for the conduct of the business of the firm as well as the firm are to be deemed to be guilty of the offence under section 138 of the Negotiable Instruments Act if the cheque issued by the firm is dishonoured due to any of the grounds mentioned in section 138 of the Act. A person would be vicariously liable for commission of an offence on the part of a partnership only in the event the conditions precedent laid down therefor in Section 141 of the Act stand satisfied. For the aforementioned purpose, a strict construction would be necessary.