ORDER
C.Y. Somayajulu, J.
1. 1st respondent filed C.A. No. 75/2003 in the Court of the IV Metropolitan Magistrate, Hyderabad, against the petitioners and respondents 2 to 5 under Section 138 of the Negotiable Instruments Act (hereinafter called as ‘the Act’) in connection with the bouncing of cheques issued by the 2nd respondent-firm. The learned Magistrate took cognizance of the offence and issued summons to the petitioners and the respondents 2 to 5. This petition is filed to quash the said proceedings in C.C. No. 75/ 2003 against the petitioners inter alia on the ground that they are not the partners of the 2nd respondent-firm and that in fact 2nd respondent-firm was constituted on 1-4-1993 with eighteen other persons as its partners, as disclosed from the partnership deed.
2. The contention of the learned counsel for the petitioners is that even if the allegations in the complaint are taken to be true, since they do not show that petitioners are responsible for the conduct of the business of 2nd respondent-firm and/or were in charge of the affairs of the said firm at the time of commission of the offence, and since in the sworn statement also no mention as to how petitioners are running the business of the 2nd respondent-firm, and which of the affairs of the said firm are being looking after by them is made though specific allegations are made against 5th respondent, who is the Office Manager of the 2nd respondent-firm, and since the allegations against petitioners are as vague as vagueness can be, and since all the paragraphs from Paragraph 4 onwards of the complaint the letters and figures ‘Nos. 2 to 5’ are written in hand as suffix to type written word ‘accused’ it is obvious that those letters and figures were written as an after-thought to somehow rope in the petitioners also as accused in the case the complaint against the petitioners is liable to be quashed in view of the ratio in the unreported decision Smt. N. Sarada v. S. Ranga Reddy, Criminal Petn. No. 1429 of 2001 dated 10-10-2002. The contention of the learned senior counsel for the 1st respondent is that petitioners by holding, themselves out as partners of 2nd respondent, placed orders with the 1st respondent for supply of the goods and 2nd respondent after having accepted the goods supplied by the 1st respondent, in pursuance of those orders placed by the petitioners, issued cheques as payment for the goods supplied and so the contention of the petitioners that they are not partners of 2nd respondent-firm, merely because their names are not found in the copy of the partnership deed produced by the petitioners along with their petition, cannot be a ground for holding that they are not liable as partners of 2nd respondent to the 1st respondent. It is his contention since the allegations in the complaint and the sworn statement recorded by the Magistrate clearly show that petitioners also are conducting the business of the 2nd respondent-firm, there are no grounds to quash the complaint against the petitioners. In reply the contention of the learned counsel for the petitioners is that the letters allegedly written by the 1st petitioner placing order on behalf of the 2nd respondent are not written by 1st petitioner and are forged documents.
3. The principles for quashing a complaint are well known. A three-Judge Bench of the Supreme Court in State of Karnataka v. Devendrappa, , held that this Court in a petition under Section 482, Cr. P.C. should not assume the role of a trial Court and embark upon a enquiry as to the reliability of evidence and sustainability of accusation on a reasonable appreciation of such evidence. In S.A. Najundeswara v. Varilak Agrotech Pvt. Ltd., 2002 AIR SCW 4 : (AIR 2002 SC 477), it is held that when the allegations in the complaint filed under Section 138 of the Act read with the sworn statement of the complainant, when taken on their face value show the commission of the offence the complaint cannot be quashed under Section 482, Cr. P.C.
4. The sheet anchor of the case of petitioners is that as per the partnership deed of the 2nd respondent-firm petitioners are not partners thereof and so they cannot be made liable as partners of 2nd respondent for the bouncing of the cheque issued on its behalf. In view of Section 28 of Partnership Act, apart from the persons who agreed to form into a partnership, persons who hold themselves out as partners of the firm would also be liable as partners of the said firm, if they by their words spoken, or written or by conduct, represent themselves or knowingly permit themselves to be represented as the partners of the firm, and if the party to whom such representation is made believing it to be true gives credit. As per the deed of Partnership dated 1-4-1993 relied on by the petitioners there are 18 partners in 2nd respondent-firm. If 1st respondent is aware, or was made aware of that deed of partnership all the 18 partners would have been shown as accused in this case. In the deed of partnership relied on by the petitioners apart from others only respondents 3 and 4 are shown as partners of 2nd respondent-firm. Petitioners and 3rd respondent are not shown as partners of the 2nd respondent-firm therein. The specific allegation in the complaint, and sworn statement, is that A-2 to A-5 i.e. petitioners and respondents 3 and 4 are the partners of A-1 i.e. 2nd respondent. This prima facie shows that 1st respondent is not aware of the partnership deed dated 1-4-1993 relied on by the petitioners. How 1st respondent is claiming that petitioners and 5th respondent as partners of 2nd respondent will have to be established by it during the course of trial, if they dispute their status as partners of 2nd respondent. As stated earlier they can be made liable as partners of 2nd respondent by holding out, in view of Section 28 of Partnership Act, even if they actually are not shown as partners in the deed of Partnership. The question as to whether the letters said to have been written by petitioners, placing order for purchase of goods with 1st respondent as partner of 2nd respondent or not has to be decided by the trial Court after taking evidence, but not by this Court in a proceeding under Section 482, Cr. P.C.
5. The allegations in the complaint from para 4 onwards do show that A-2 to A-5 i.e. petitioners and respondents 3 and 4, as partners and A-6 i.e. 5th respondent as Office Manager were acting on behalf of A-1 i.e. 2nd respondent-firm. The fact that “Nos. 2 to 5” are suffixed to the type written word ‘accused’ in handwriting is of no consequence, and is irrelevant for deciding this petition, because it is not the case of the petitioners that there was a tampering with the complaint subsequent to the trial Court taking cognizance of the case. So, those corrections obviously were made before the complaint was filed into Court, If the petitioners want to know why and how “Nos. 2 to 5” are handwritten, when the rest of the complaint is type written, they can do so during the cross-examination of the witnesses examined on behalf of the 1st respondent/complainant. At this stage this Court cannot go into the question as to why the complainant suffixed “Nos. 2 to 5” to the type written word ‘accused’ from paragraph 4 onwards in the complaint.
6. In my considered opinion the ratio in N. Sarada case (1 supra) relied on by the learned counsel for the petitioner has no application to the facts of this case as it relates to the dishonour of a cheque issued for and on behalf of a company registered under the provisions of the Companies Act and this case relates to a cheque issued by a partnership, firm governed by the provisions of Partnership Act. It is well known that ‘company’ is different from a ‘firm’ inasmuch as a ‘company’ on its being registered under the provisions of the Companies Act becomes a body corporate and can sue and be sued in its own name. Its shareholders and Directors are different from it. But a firm is not a different from its partners and is not a body corporate. By virtue of Order XXX, C.P.C. only can a firm sue and be sued in its name. Firm is not and cannot be different from its partners, as can be seen from Section 4 of Partnership Act. As per Section 12 of Partnership Act, subject to contract between the partners every partner has a right to take part in the conduct of the business and is bound to attend deligently to his duties in the conduct of business etc. A close and careful reading of the complaint shows that, it is the specific case of the complainant (1st respondent) that petitioners also are actively participating in the conduct of the business of the firm and are looking after its affairs and day-to-day administration. In the sworn statement it is specifically stated that the “Accused used to purchase goods from the complainant on running account”. So, it is clear that as per the complainant (1st respondent) petitioners also were carrying on business on behalf of the 2nd respondent-firm.
7. As per Section 141(1) of the Act, which deals with offences by companies, in case a cheque is issued by a company apart from the company that drew the cheque every person who, at the time of commission of the offence, was in charge of and was responsible to the company for the conduct of the business of the company, would be deemed to be guilty of the offence. As per proviso to Section 141(1) of the Act, if such person is able to establish that the offence was committed without his knowledge, or establishes that he exercised all due diligence to prevent the commission of such offence, he would not be liable for punishment. As per Section 141(2) of the Act, Director, Manager, Secretary or other Officer who connives with and due to whose neglect the offence is committed, would also be liable for punishment along with the company. Since this is a case arising out of a cheque issued on behalf of 2nd respondent-firm, in view of the allegations in the complaint and the sworn statement and in view of the proviso to Section 141 (1) of the Act, it is for the petitioners to establish their innocence or ignorance about the commission of the offence alleged, more so because the allegations in the complaint show that petitioners, after having received the statutory notice demanding payment after dishonour, did not send a reply thereto. Explanation to Section 141 lays down that ‘company’ includes firm and ‘director’ includes partner.
8. No inference either in favour of the petitioners or 2nd respondent or against the 1st respondent need, or can, be drawn by the 1st respondent elaborating the role of A-6 (5th respondent) in the complaint and sworn statement, and in not elaborating the role of petitioners therein in extenso, because A-6 (5th respondent) is not a partner of 2nd respondent but is the manager thereof. Unlike a partner, a manager or other employee cannot, in view of Section 141 of the Act, be made liable for an offence under Section 138 of the Act unless it is shown that he is in charge of or was responsible to the conduct of the business of the firm.
9. In Neeta Bhalla v. S.M.S. Pharmaceuticals Ltd., (2002) 1 Andh LT (Cri) 127, referred to in Sarada case (supra), it is observed as follows :
“no complainant can be permitted to launch prosecution against all the Directors of the Company without there being a proper foundation in the complaint, itself, about the actual role played by them at the material point of time, when the offence is committed by the company.” “The Court cannot undertake any further enquiry if clear, specific and unambiguous allegations are made against each of those persons arrayed as accused in the complaint about the role played at the material time when the offence is committed by the company. Mere repetition of the words incorporated in Section 141 of the Act would not meet the requirement in law to rope any and every Director, or other Officer, Manager, Secretary of the company, as the case may be,”
10. All the Directors of a company may not be responsible for issuance of a dishonured cheque, since company is different from its Directors. If Directors who did not take part in the transaction resulting in the issuance of the dishonoured cheque are sought to be made liable for an offence under Section 138 of the Act, in view of Section 141 of the Act it is necessary to detail, in the complaint, the part played by them in the transaction. But, in the case of partnership, since every partner is an agent of the other partners and has a right to take part in the business of the firm it is not necessary to give minute details of the role played by them in the transaction and when it is stated that they are running the business of the firm. In this case there is specific allegation that petitioners also were responsible for the issuance of the dishonoured cheques. Hence, Neetha Bhalla case (2002 1) Andh LT (Cri) 127) (supra) is of no help to the petitioners.
11. Sham Sundar v. State of Haryana, referred to in Sarada case (supra) arose of a case filed under Prevention of Food Adulteration Act, 1954 (hereinafter called as ‘P.F.A. Act’), against a firm and its partners taking aid of Section 17 of the P.F.A. Act, which is similar to Section 141 of the Act. Basing on the evidence on record, the Supreme Court held that some of the accused of the firm, who were not looking after the business of the firm, cannot be made liable for the offence under P.F.A. Act merely because they happen to be the partners of the firm. Since this is not an appeal against conviction, and since this is petition under Section 482, Cr. P.C. that decision is of no help to the petitioner at two stage where no evidence is adduced.
12. In view of the above I find no grounds to quash the complaint against the petitioners and hence the petition is dismissed.