JUDGMENT
V.K. Bali, J.
1. Subash Bajaj through the present petition filed by him under Section 482 of the Criminal Procedure Code, 1973, seeks quashing of the order dated December 3, 1994 (annexure P-4), passed by the Judicial Magistrate, Chandigarh, to the extent that respondent No. 3, Krishan Mehra, has not been summoned under Section 138 read with
Section 141 of the Negotiable Instruments Act (hereinafter referred to as “the Act”).
2. There is a preliminary objection raised by Mr. Narula, learned counsel appearing for the respondents, with regard to the maintainability of the petition under Section 482 of the Code of Criminal Procedure, 1973. He contends that there is a specific provision for filing of a revision petition under Section 398 and that being so the matter cannot be raked up under Section 482 of the Criminal Procedure Code, 1973. The argument needs to be rejected by simply observing that even if technically the contention of learned counsel for the respondents may be correct, a fact, however, hotly denied and contested by learned counsel appearing for the petitioner, this court can always treat this petition as under Section 398, The objection thus raised by Mr. Narula is overruled.
3. In so far as the merits of the case are concerned, the brief facts giving rise to the present case need mention. The petitioner filed a complaint under Section 138 of the Negotiable Instruments Act, 1881, against Mehra Enterprises, a partnership concern, through its partners, Anil Mehra, partner of the said firm and Krishan Mehra, the other partner of the firm, inter alia, praying therein that on request made by all the accused, an advance of Rs. 3,50,000 was given on October 25/1993, by the petitioner. At the time of receipt of the loan amount, the accused had duly executed the promissory note acknowledging the receipt of the loan amount and the respondents were to pay interest at the rate of 2 per cent. per month but the accused did not pay interest. Repeated requests were made to them for repayment of loan and interest resulting in the accused issuing post-dated cheques dated July 25, 1994, and August 30, 1994, for an amount of Rs. 2,36,000 and Rs. 1,80,000, respectively. These cheques were presented in the Bank of India. However, the same were returned with the remarks “exceeds agreement” dated September 6, 1994, along with the debit advice dated September 7, 1994. The cheques were, thus, not encashed and were returned unpaid due to insufficiency of funds in the bank account maintained by the accused in their bank, i.e., Oriental Bank of Commerce, Sector 19-D, Chandigarh. The positive stand of the petitioner in the complaint was that the accused respondents Nos. 2 and 3 are active and responsible partners of the firm and both of them hold and look after the day-to-day affairs of the partnership firm and the cheques were issued to discharge their liabilities. In the preliminary evidence that was led by the complainant as well, it was clearly mentioned that both these partners are
running the concern which is a partnership concern known as Mehra Enterprises. Even though the averment with regard to responsibilities of both the partners was clearly averred in the complaint and to the same effect preliminary evidence was recorded, the Magistrate concerned summoned only Anil Mehra to face trial under Section 138 of the Act and did not summon the other partner, Krishan Mehra.
4. Learned counsel appearing for the petitioner vehemently contends that whenever an offence is committed by a company or a partnership concern, the company or the partners as well as the persons in charge and responsible to the company for the conduct of the business of the company become liable for the offence under Section 138 of the Act. For the aforesaid contention, learned counsel relied upon Kahan Chand Gupta v. Rai Kumar [1994] 1 Recent C. R. 336 and Manju Podar v. Ashwani Kumar [1904] 1 C. R. 655 ; [1996] 86 Comp Cas 631 (P & H).
5. The proposition of law as noticed above could not be distinguished by learned counsel representing the respondents. The matter, thus, being squarely covered in favour of the petitioner by the two judgments of this court referred to above, the impugned order in so far as it pertains to non-summoning of Krishan Mehra is liable to be set aside and is accordingly set aside. Inasmuch as this court is exercising the powers under Section 398 of the Code of Criminal Procedure, 1973, the matter is remitted to the trial court for making further enquiry into the matter and then to proceed in the matter in accordance with law.
