ORDER
C.Y. Somayajulu, J.
1. First respondent filed C.C. No. 342 of 2002 under Section 138 of the Negotiable Instruments Act (the Act) alleging that petitioners and third respondent, as partners of the second respondent firm, obtained a loan of Rs. 1,50,000/- and that the cheque issued by the third respondent on behalf of second respondent firm towards repayment of the debt due to it was dishonoured and that petitioners and respondents 2 and 3 in spite of statutory notice of demand for payment after dishonour failed to pay the amount covered by dishonoured cheque. This petition is filed to quash the said complaint against the petitioners.
2. The contention of the learned Counsel for petitioners is that since the petitioners retired from the second respondent firm on 1.4.1999, i.e., even prior to the issuance of the dishonoured cheque by the third respondent on behalf of second respondent, they (petitioners) cannot be made liable for the offence under Section 138 of the Act, more so because there is no specific allegation in the complaint that petitioners have been in charge of and are looking after the affairs of the second respondent firm. The contention of the learned Counsel for first respondent is that since no prima facie evidence to show the retirement of the petitioners from the second respondent firm is produced and since there is specific allegation in the complaint that petitioners also actively participated in the transaction and have assured the repayment of the loan taken, there are no grounds to quash the complaint against petitioners.
3. That petitioners are the partners of second respondent firm on whose behalf the dishonoured cheque was issued by the third respondent is not denied or disputed. The specific case of the petitioners is that they retired from the partnership before the date of issuance of the dishonoured cheque. Since there are only three partners, if two partners retire, a firm cannot continue with one partner. So, it amounts to dissolution of the firm. So, Sections 45 and 72 of Partnership Act would govern their alleged retirement or dissolution. Since there is nothing on record to show that petitioners have given a public notice of their retirement, and since it is also not their case that a public notice as contemplated by Section 72 of Partnership Act was given, in view of Section 45 of Partnership Act they would continue to be liable to the first respondent as partners of the second respondent firm. Since as per Explanation (A) of that section ‘firm’ also is governed by Section 141 of the Act, any person responsible for the conduct of the business of the firm would also be liable for punishment for the offence under Section 138 of the Act.
4. The averments in paragraphs 1 and 3 of the complaint show that petitioners also approached the first respondent for loan on behalf of second respondent along with the third respondent assuring that they also would discharge the loan of the second respondent, which prima facie shows that they were also acting on behalf of and are responsible for the affairs of the second respondent firm. The questions as to whether they actually were in charge of the affairs of the firm or not, and if they had made the assurance as alleged or not, have to be decided at the time of trial.
5. It is well known that a complaint cannot be quashed merely on the assertions made by the petitioners that they are falsely implicated in the case. Unless there is prima facie evidence to show that the complaint is an abuse of process of Court, or in case the allegations in the complaint do not even prima facie show the ingredients for an offence under Section 138 of the Act the complaint cannot be quashed.
6. Since the averments in the complaint prima facie show the commission of offence under Section 138 of the Act by the petitioners and since there is no prima facie evidence to show that public notice as contemplated by Section 72 of Partnership Act was issued by the petitioners, complaint against them cannot be quashed.
Hence the petition is dismissed.