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KARAMJIT SINGH, J. –

1. Prayer in the present petition is for quashing of criminal complaint No.55 of 20.12.2012 titled as Naresh Sanghi vs. Navdeep Sharma filed under Section 138 of Negotiable Instruments Act, 1985 (Annexure P-1) and summoning order dated 6.7.2013 (Annexure P-2) passed by the Court of learned Judicial Magistrate Ist Class, Narnaul and order dated 12.1.2016 (Annexure P-3) passed by the Court of learned Additional Sessions Judge, Narnaul whereby the revision petition filed by the petitioner against the summoning order Annexure P-2 was dismissed.

2. The brief facts of the case are that respondent/complainant-Naresh Sanghi filed criminal complaint under Section 138 of Negotiable Instruments Act, 1985 (in short “the Act”) against the petitioner/accused alleging that the petitioner issued cheque No.934403 dated 1.2.2012 for an amount of `10 lacs in favour of the respondent. The said cheque was handed over by the petitioner to the respondent in discharge of his legal liability, but on its presentation to the bank, the said cheque was dishonoured on account of insufficient funds in the concerned bank account of the petitioner. Registered legal notice under Section 138 of the Act was issued to the petitioner with regard to dishonour of the cheque and the petitioner gave his reply whereby he denied his liability and the petitioner failed to make the payment of cheque amount within stipulated period and finally criminal complaint (Annexure P-1) was filed under Section 138 of the Act by the respondent against the petitioner. After completion of preliminary evidence, the learned trial Court passed summoning order Annexure P-2 dated 6.7.2013.

3. The petitioner being aggrieved filed revision petition challenging the summoning order Annexure P-2. The revision petition was contested by the respondent and was dismissed by the revisional Court, after hearing both the parties, vide order dated 12.1.2016 (Annexure P-3).

4. Still dis-satisfied, the petitioner has filed the present petition seeking quashing of criminal complaint Annexure P-1; summoning order Annexure P-2 and order passed by the Revisional Court Annexure P-3.

5. On receipt of notice of motion, the respondent put in appearance through his counsel and filed detailed written reply.

6. I have heard the counsel for the parties.

7. The counsel for the petitioner has argued that complaint(Annexure P-1) is not maintainable and summoning order (Annexure P-2) and order passed by the Revisional Court (Annexure P-3) are illegal on the following grounds:-

i. that M/s Hydel Constructions Mobile Drill Master (Joint Venture)-HMJV is a partnership firm having two partners and the copy of the partnership deed is Annexure P-27. The cheque in question (Annexure P-22) appears to be issued by the petitioner being authorized signatory of M/s Hydel Constructions Mobile Drill Master (Joint Venture)-HMJV, however the said firm i.e. M/s HMJV is not made party to the complaint. It is settled position of law that in the absence of the partnership firm, its partner cannot be held vicariously liable as per the provisions of Section 141 of the Act and in this regard reference is made to the law laid down by the Hon’ble Supreme Court in Aneeta Hada vs. Godfather Travels and Tours Pvt. Ltd. (2012) 5 SCC 661.

ii. that the partnership firm of the petitioner was awarded a work contract of mining and crushing by a company namely KMC/ETA Star Joint Venture for further construction of Jaipur Pink City Express Way and for that purpose the partnership firm of the petitioner established its mining work in village Raghunath Pura Tehsil Narnaul District Mahendergarh (Haryana) after obtaining the necessary license and permit. The respondent being partner of M/s Sidhi Vinayak Enterprises and one Ravinder Kumar a local muscleman tried to overawe the petitioner and started raising illegal demand of money and also extended threats to the petitioner and both of them started interfering in the work of the petitioner and took crushed stone material worth `48 lacs without making any payment to the petitioner and the respondent also lodged false FIR (Annexure P-6) against the petitioner. The petitioner was taken into police custody and there also he was intimidated and was forced to fill five cheques bearing Sr. Nos. 934399, 934400, 934401, 934402 and 934403 in the name of the respondent and Ravinder Kumar for the sum of `40-45 lacs and amount worth `5 lacs was separately extorted from the petitioner. That the impugned complaint Annexure P-1 has been lodged by the respondent on the basis of one of the aforesaid cheques bearing No.934403 (Annexure P-22). The matter was investigated and on completion of investigation FIR (Annexure P-6) lodged by the respondent was found to be false and the concerned status report filed by the police is Annexure P-18 and the police has recommended cancellation of the said FIR vide Annexure P-19.

iii. that the petitioner is resident of Dehradun (Uttaranchal), whereas the impugned complaint (Annexure P-1) was filed in Narnaul (Haryana) and the learned trial Court passed summoning order Annexure P-2 without complying with provisions of Section 202 Cr.P.C.

8. On the other hand the counsel for the respondent has contended that the complaint (Annexure P-1) is maintainable in the present form and there is no illegality in the same. The counsel for the respondent has further argued that cheque in question (Annexure P-22) is bearing the signatures of the petitioner and the same was issued by the petitioner in favour of the respondent but on its presentation, cheque (Annexure P-22) was dishonoured due to insufficient funds in the concerned bank account of the petitioner and after completion of all the formalities, complaint (Annexure P-1) was filed under Section 138 of the Act against the petitioner and after recording of preliminary evidence, the learned trial Court summoned the petitioner vide summoning order (Annexure P-2). The same was challenged by the petitioner who filed revision petition but the same was dismissed by the Revisional Court on merits vide order (Annexure P-3). The counsel for the respondent has further contended that before the Revisional Court, the petitioner has not taken any objection with regard to non-maintainability of complaint (Annexure P-1) on account of the fact that the partnership firm was not arraingned as a party to the complaint. The counsel for the respondent has further submitted that the complaint filed in the present form is maintainable and there is no illegality or infirmity in the summoning order (Annexure P-2) and the order of the Revisional Court (Annexure P-3). The counsel for the respondent has further contended that the plea taken by the petitioner that the cheque in question was forcibly taken from the petitioner while he was in police custody, is a matter of evidence and is to be dealt by the learned trial Court at the time of final disposal of the case. The counsel for the respondent further argued that at this stage, no interference is called for under Section 482 Cr.P.C., as the inherent power provided under Section 482 Cr.P.C. should not be exercised to stifle a legitimate prosecution as has been held by the Hon’ble Supreme Court in State of Madhya Pradesh vs. Awadh Kishore Gupta (2004)1 SCC 691.

9. I have considered the submissions made by the counsel for the parties.

10. On perusal of partnership deed dated 10.01.2009 (Annexure P-27) it appears that partnership firm i.e. M/s Hydel Constructions Mobile Drill Master (Joint Venture)-HMJV was having 2 partners namely Rupinder Singh Thind and petitioner Navdeep Sharma.

11. Admittedly, the cheque in question (Annexure P-22) bears signature of the petitioner and was issued in the name of the respondent. Perusal of the said cheque (Annexure P-22), shows that the petitioner signed the said cheque being authorized signatory of aforesaid partnership firm namely M/s HMJV. The respondent in his written reply has clearly admitted that the petitioner was sole authorized signatory of the firm. Thus making it clear that the petitioner signed the cheque (Annexure-22) only in a capacity of authorized signatory of partnership firm M/s HMJV. Admittedly partnership firm M/s HMJV is not arraigned as an accused in the impugned complaint (Annexure P-1).

12. In Aneeta Hada’s case (supra), the issue involved for consideration was whether an authorized signatory of a company would be liable for prosecution under Section 138 of the Act without the company being arrayed as an accused and the Hon’ble Apex Court arrived at the irresistible conclusion that for maintaining the prosecution under Section 141 of the Act, arraigning of company as an accused is imperative.

13. The expression ‘company’ also includes a firm, as is provided in Explanation to Section 141 of the Act. So the law laid down in Aneeta Hada’s case (supra) is also applicable to a partnership firm. Thus, it is settled law that there cannot be any vicarious liability of the partner of a partnership firm unless there is a prosecution against the partnership firm.

14. In the light of the above, the settled position in law is that in a complaint case filed under the Act, the partners or authorized signatory of the partnership firm cannot be prosecuted without impleadment of the said partnership firm. In the instant case partnership firm M/s HMJV is not impleaded as an accused. Thus, the complaint (Annexure P-1) filed by the respondent is not maintainable in the present form against the petitioner who is partner in the aforesaid partnership firm, on account of non-impleadment of partnership firm M/s HMJV.

15. So far as the ground taken by counsel for the petitioner at Sr. No.(ii), the same cannot be adjudicated by this Court under Section 482 Cr.P.C., as the same involves disputed questions of fact and the Court cannot delve into the same in exercise of its jurisdiction under Section 482 Cr.P.C.

16. Coming to the ground taken by counsel for the petitioner at Sr. No.(iii), the same also appears to be untenable in the light of the law laid down by the Hon’ble Apex Court in Sunil Todi & Ors. Vs. State of Gujarat & Ors. 2022(1) RCR(Crl.) 395.

17. In the light of the fact that the prosecution of petitioner under Section 138 read with Section 141 of the Act is not sustainable without arraigning of the partnership firm M/s HMJV, as discussed above, the complaint (Annexure P-1) is bad in law and entire proceedings in pursuance thereof are nothing but an abuse of process of the Court and are liable to the quashed.

18. Accordingly this petition is allowed and criminal complaint (Annexure P-1), summoning order (Annexure P-2) and the order passed by the Revisional Court (Annexure P-3) and all the subsequent proceedings arising therefrom stand quashed.

Petition allowed.

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