P. Gurusamy vs S. Jeganathan

A. Ramamurthi, J.—The petitioner is the complainant in Crl.M.P. No. 3145 of 1998 on the file of the learned XIII Metropolitan Magistrate, Egmore, Chennai, and has filed the revision aggrieved against the order dated December 2, 1998.

The case it. brief is as follows : The petitioner filed a complaint against the respondent and the same was dismisscd u/s 203 of the Code of Criminal Procedure, 1973, even without issuing summons to the accused on the ground that the partnership firm has not been arrayed as an accused. The learned Magistrate has failed to appreciate Section 141 of the Negotiable Instruments Act, 1881. The person in charge of and responsible for the conduct of the business as stated in the complaint, can be the sole accused and the complaint cannot be dismissed on the ground that the firm was not arrayed as an accused.

Learned Counsel for the respondent stated that the accused himself has been described . as partner of Land Mark Promoters and, as such, the firm ought to have been impleaded as an accused in the case. He also pointed out para 4 of the complaint, wherein it is stated that the accused is a partner of Land Mark Promoters.

Heard learned Counsels on both sides.

The complainant filed a complaint u/s 138 of Negotiable Instruments Act against the respondent and the same has been dismissed by the learned Magistrate u/s 203 of the Code of Criminal Procedure since the firm has not been impleaded as an accused in the case. Learned Counsel for the petitioner relied upon Sheoratan Agarwal and Another Vs. State of Madhya Pradesh, , for the proposition that separate prosecution of person in-charge or officer of company without prosecuting the company is permissible. This decision is even u/s 10 of the Essential Commodities Act, 1955. Learned Counsel also placed reliance upon another decision in Bilakchand Gyanchand Co. v. A. Chinnasami, (1992) 2 Scale 250, that "proceedings initiated against signatory of cheques who was the Managing Director of the company--quashing the complaint on the ground that notice sent to appellant could not be notice to the company itself, was not justified" and, as such, the quashing of the proceedings was set aside and remitted back to the Judicial Magistrate. This decision is also not applicable to the case on hand since it is not stated whelher the company should be arrayed as an accused or not.

No doubt, the accused has been described as partner of the Land Mark Promoters. The Court below perused some of the documents and came to the conclusion that as the complaint has been filed only on the individual person without impleading the firm is not maintainable under law and, as such, dismissed the same. The question whether the company or the firm is a necessary party or not can be decided at the time of the trial. The entire matter depends upon the evidence as to whether the accused had issued the cheque in question for and on behalf of the firm or not. Under the circumstance, the dismissal of the complaint by the Court below on a technical ground is not proper and correct and process ought to have been issued to the respondent, so that whatever defence available can be raised and, ultimately, the case can be disposed of on the merits.

For the reasons mentioned above, the revision is allowed and the order passed by the Court below is set aside. The Trial Court is directed to take the case on file and issue process to the accused and dispose of the same in accordance with law.