SANJAY MADHAV ATHAVALE Vs. GUPTA ENTERPRISES

JUDGEMENT

(1.) ON 17th August 2006 the Petition was finally heard. The challenge in this Writ Petition under Article 227 of Constitution of India is to the Order dated 2nd March 2006 passed by the learned Judicial Magistrate (First Class), Khadaki Court, Pune. By the said order, the application made by the present Petitioner at Exh.76 has been rejected.

(2.) THE first Respondent is a complainant in a private complaint filed for offences punishable under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as said Act of 1881) and section 420 of the Indian Penal Code. The Respondent Nos.2 to 4 are arraigned as accused persons in the said private complaint. The learned Magistrate issued process on the said complaint. The summons addressed to the second respondent was served on the Petitioner herein. In the application at exh.76 made by the Petitioner herein, it was contended that he was not personally served with any summons and process has not been issued against him. He stated that he has been served with a summons addressed to the Respondent No.2. The prayer in the application was for seeking direction not to record the plea against the Applicant. The said application was contested by the first Respondent by filing a reply. The contention raised in the reply was that the Petitioner is a partner of the firm and is a signatory to the cheque. The learned Magistrate while passing the impugned order observed that it was premature to accept the contention of the first Respondent that the cheque in question bears the signature of the present Petitioner. The learned Magistrate observed that it was premature to decide the contentions raised by the present Petitioner.

(3.) SHRI Anturkar appearing for the Respondent submitted that the first accused was a partnership firm and as the Petitioner was representing the partnership firm being its partner, his plea will have to be recorded. He invited my attention to section 141 of the said Act of 1881 and submitted that the first accused which is a partnership firm will have to be represented by its partner.