AMIT KUMAR AGARWAL Vs. REYNOLDS PACKAGINGS PVT. LTD.

JUDGEMENT

(1.) THE petitioner herein is the third accused (A3) in a criminal case i.e. C.C. No. 172 of 2003 on the file of the Court of the II Metropolitan Magistrate, Hyderabad. He filed this petition under Section 482 of the Code of Criminal Procedure (for short 'Cr.P.C.') to quash the proceedings against him in the said criminal case.

(2.) THE first respondent herein which is a private limited company is the complainant in the aforesaid C.C. No. 172 of 2003 and it filed the same alleging an offence punishable under Section 138 read with Section 142 of the Negotiable Instruments Act, 1881 (for short 'Act') against the petitioner and respondents 2 and 3 herein. The allegations made in the complaint are that the petitioner and the third respondent herein are partners of the second respondent partnership firm and that in connection with a subsisting liability the third respondent Umakanth Agarwal issued six cheques for various amounts aggregating to Rs. 18 lakh on behalf of the said firm in favour of the complainant drawn on Agroha Co-operative Urban Bank Limited, Ricob Gunj, Hyderabad and that the said cheques when presented for encashment were dishonoured with the endorsement "payment stopped by drawer". The learned Magistrate after examining the complaint took cognizance of it as C.C. No. 172 of 2003 on his file for the above offences and issued process to the petitioner, his partnership firm and the other partner i.e. Umakanth Agarwal who is the third respondent herein. It is then stated in the complaint that the petitioner and the third respondent are active partners of their partnership firm M/s. Paro Food Products which is the first accused in the case and therefore all the three of them are liable for the offence punishable under Section 138 read with Section 142 of the Act.

(3.) ELABORATING on the above contention Mr. Sanghi pointed out that Section 141 of the Act which deals with prosecution of companies for the offence under Section 138 of the Act covers a partnership firm and its partners also and since the petitioner did not admittedly issue the cheques in question, he would not be personally liable for the alleged offence but he may be held vicariously liable as a partner only if it is pleaded in the complaint that he was in charge of the conduct of the business of the partnership firm in question as contemplated under Section 141 of the Act and since it is not pleaded so in the complaint as required by Section 141 of the Act the proceedings against him should be quashed. His plea is that this is the principle laid down in the aforesaid two decisions relied upon by him.