GOLDEN AGRO FOODS Vs. SAHIL TRADING COMPANY

JUDGEMENT

(1.) Petitioners are seeking quashing of a Criminal Complaint bearing No.NACT/977 dtd. 18/7/2017 titled as "Sahil Trading Company Vs. Ms. Golden Agro Fooda" (Annexure P-1) and summoning order dtd. 17/10/2017Annexure P-2) passed by learned Judicial Magistrate, Panchkula, whereby, they have been summoned to face trial under Sec. 138 of the Negotiable Instruments Act.

(2.) Learned counsel appearing for the petitioner inter alia submits that the complaint under Sec. 138 of the Negotiable Instruments Act which was instituted by the complainant/respondent against the petitioners was not maintainable as the mandatory statutory provisions had not been complied with. Learned counsel while drawing the attention of this Court to the second proviso to Sec. 138 of the Negotiable Instruments Act has submitted that issuance of statutory demand notice to all the accused is mandated therein, however, admittedly in the case in hand, notice was issued only to petitioner No.2. Since the cheque in question had been drawn in the name of petitioner No.1/company, a complaint under Sec. 138 of the Negotiable Instruments Act could not have been instituted without issuance of any notice to petitioner No.1/company. Therefore, in the absence of any demand notice having been issued to petitioner No.1/company, no cause of action could have arisen in favour of the respondent. In support of this submissions, learned counsel has placed reliance upon a judgment of the Hon'ble Apex Court in Aneeta Hada Vs. M/s Godfather Travels and Tours Pvt. Ltd., 2012 (2) RCR (Criminal) 854.

(3.) Per contra, learned counsel appearing for the respondent while inviting the attention of this Court to the contents of the petition as well as the complaint under Sec. 138 of the Negotiable Instruments Act (Annexure P-1) has vehemently contended that petitioner No.1 is a partnership firm governed under the provisions of the Indian Partnership Act and is not a company within the meaning of the Companies Act. He has asserted that as per Sec. 24 of the Indian Partnership Act, notice to a partner would be deemed to be a notice to the firm as well, hence, petitioners cannot seek quashing of the complaint on the ground that the partnership firm and other partners were not served with any legal notice. In support of this contentions, learned counsel has placed reliance upon a decision of this Court in Subash Chander and others Vs. Ramesh Khanna, 2019 (3) RCR (Criminal) 992.