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TMI Blog2016 (3) TMI 290X X X X Extracts X X X X X X X X Extracts X X X X ..... omplaint at Exhibit no.1. (c) Any other and further relief/s as may be deemed just, fit and proper in the facts and circumstances of the present case may kindly be granted in the interest of justice." 2 The facts of this case may be summarized as under: 2.1 The applicant herein filed a complaint being Criminal Case No.222 of 2004 in the Court of the Additional Chief Judicial Magistrate, Gondal, against the respondent No.2 herein for the offence punishable under Section 138 of the Negotiable Instruments Act. 2.2 As is evident on perusal of the complaint itself, which is at page -11, Annexure: 'A' to this petition, that six individuals have been arraigned as accused being partners of a partnership firm running in the name of 'Swastik Construction'. The partnership firm, as a legal entity or juristic person, has not been arraigned as an accused. 2.3 The learned Chief Judicial Magistrate took cognizance upon the said complaint and ordered issue of process against all the six partners named as accused in the complaint. 2.4 It appears that the respondents herein and other coaccused preferred the Criminal Miscellaneous Application No.5043 of 2014 for quashing of the proceedings of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : 53 is purported to have been filed under Section 319 of the Code of Criminal Procedure, 1973. 2.8 The learned Chief Judicial Magistrate, Gondal adjudicated the application Exhibit : 53 and vide order dated 15th April, 2015 rejected the same. 2.9 Being dissatisfied with the order passed below Exhibit : 53, the applicant - original complainant has come up with this application, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. 3 Mr. Tushar L. Sheth, the learned counsel appearing for the applicant vehemently submitted that the learned Magistrate committed a serious error in rejecting the application Exhibit : 53. He submitted that the application filed under Section 319 of the Cr.P.C. to implead the partnership firm being a legal body is maintainable. He submitted that assuming for the moment that at the relevant point of time, the partnership firm was not impleaded as an accused, and no cognizance was taken for the offence against the legal entity, yet at a later stage, it is open for the Court to permit the complainant to implead the legal entity and proceed further with the trial in accordance with law. He submitted that the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chheharta [(1979) 3 SCC 83] (3) Comptroller and Auditor General v. Kamlesh Vadilal Mehta [(2003) 2 SCC 349] (4) Bacha F. Guzdar, Bombay v. Commissioner of Income Tax, Bombay [[1955 AIR SC 74] (5) A Kerala High Court decision of a learned Single Judge (K.T. Thomas, J., as His Lordship then was) in the case of Plywood House v. Wood Craft Products Limited [1994 (1) Crimes 434] (6) Mahabir Cold Storage v. Commissioner of Income Tax, Patna [1991 AIR SC 1357] (7) Hardeep Singh v. State of Punjab and others [2014 (1) Scale 241] 8 Having heard the learned counsel appearing for the applicant and having considered the materials on record, the following questions fall for my consideration: (I) Whether a partnership firm is a legal entity like a company so far as the offence punishable under Section 138 of the Negotiable Instruments Act is concerned? (II) Is the prosecution of the partners of a firm, by virtue of Section 141 of the Act, maintainable in the absence of the partnership firm being impleaded or arraigned as an accused? (III) When the complaint under Section 138 of the Act has the initial defect in its sustainability, can such defect be cured by amending the procee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e practicing a profession within the meaning of this subsection." 9.2 The Supreme Court proceeded to observe in paras 15, 16 and 18 as under: "15. From a plain reading of the extracted provision, it is clear that a tax leviable under clause (b) is, in terms, a tax on "persons". The expression "persons" undoubtedly includes natural persons. The class of such taxable persons has been indicated by the Legislature with reference to their occupational activity. Thus, in order to be authorised, a tax under clause (b) of Section 61 (1) must satisfy two conditions: First, it must be a tax on "persons". Second, such persons must be practicing any profession or art or carrying on any trade or calling in the municipality. 16. There can be no dispute that the appellants are "person" and, as such, satisfy the first condition. Even the learned counsel for the appellants has candidly conceded that the individual partners are also "persons" within the meaning of the said clause (b). Controversy thus becomes narrowed down into the issue: Whether persons collectively doing business in partnership in the municipality, fulfill the second condition? That is to say, do such persons "carry on any t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trade collectively in the municipality from being taxed as individuals. To attract liability to a tax under this clause, it is sufficient that the person concerned is carrying on a trade in the municipality, irrespective of whether such trade is being carried on by him individually or in partnership with others. Thus, both the conditions necessary for levying a tax under clause (b) of subsection (1) of Section 61 of the Municipal Act existed in this case. The appellants are "persons" and they are carrying on a trade in Chheharta Municipality." 9.3 By placing reliance on the observations made in para 18, the learned counsel submitted that a firm or partnership is not a legal entity separate and distinct from the partners. 10 In Mahabir Cold Storage (supra), the appeal before the Supreme Court was filed by the appellant - assessee against the judgment of the Division Bench, Patna made in the Tax Case answering in favour of the Revenue and against the Assessee. In the said case, the assessee was a registered partnership firm. In para 11, the Court observed as under: "11. The crucial question, therefore, is whether the appellant is the owner of the machinery and plant in the rele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or General (supra), the issue before the Supreme Court was whether the respondent being a proprietary concern was eligible for being brought on the panel for audit work of government companies and concerns. The audit work of the government and public undertakings was assigned to only those Chartered Accountant firms which were enrolled on the panel maintained by the appellant. The appellant through an advertisement invited applications from the firms of the Chartered Accountants for the purpose of empanelment for audit of the government companies. The respondent therein had submitted an application for enrollment on the panel, but the same was rejected on account of the fact that his firm was not a partnership firm, but a proprietary concern. Aggrieved, the respondent filed a writ application under Article 226 of the Constitution of India challenging the exclusion of the proprietary concerns from their empanelment as being discriminatory, arbitrary and violative of Article 14 of the Constitution. The learned Single Judge of this High Court allowed the writ petition. The Letters Patent Appeal before the Division Bench was also dismissed. The Comptroller and Auditor General preferred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the Supreme Court observed, in para 9, as under: "9. It was argued that the position of shareholders in a company is analogous to that of partners 'inter se.' This analogy is wholly inaccurate. Partnership is merely an association of persons for carrying on the business of partnership and in law the firm's name is a compendious method of describing the partners. Such is, however, not the case of a company which stands as a separate juristic entity distinct from the shareholders. In Halsbury's Laws of England, Vol. 6 (3rd Ed), page 234, the law regarding the attributes of shares is thus stated : "A share is a right to a specified amount of the share capital of a company carrying with it certain rights and liabilities while the company is a going concern and in its winding up. The shares or other interest of any member in a company are personal estate transferable in the manner provided by its articles, and are not of the nature of real estate"." 13 In V. Subramaniam (supra), the appeal before the Supreme Court arose of a suit filed before the Bombay City Civil Court instituted by the appellant praying for dissolution of an unregistered partnership firm between the appellant a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... companies (1) If the person committing an offence under section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. Provided that nothing contained in this subsection shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence : [Provided further that where a person is nominated as a Director of a company by virtue of his holding any office or employment in the Central Government or State Government or a financial corporation owned or controlled by the Central Government or the State Government, as the case may be, he shall not be liable for prosecution under this Chapter.] (2) Notwithstanding anything contained in subsection (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be proceeded against and punished accordingly. The Explanation to the section defines 'company' as any body corporate and includes a firm or other association of individuals; and 'director', in relation to a firm, means a partner in the firm. 17 It is only the drawer of the cheque, who can be held responsible for an offence under Section 138 of the Act. Section 141 provides for the constructive liability. It postulates that a person, in charge of and responsible to the company, in the context of the business of the company, shall also be deemed guilty of the offence. The drawer can be a company, a firm or an association of individuals, but only those directors, partners, or officers can be held responsible for the offence punishable under Section 138 of the Act, who are responsible to the company - firm for the conduct of its business. 18 The Legislature has thought fit to provide an explanation in Section 141 of the Act and the plain reading of the expression "company" as used in Subclause (a) of the explanation appended to Section 141 of the Act shows that it is an inclusive of any body corporate or "other association of individuals". Though the heading of Section 141 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not interested in proceeding against the partners apart from the firm. 21 It is now well settled that an Explanation added to a statutory provision is not a substantive provision in any sense of the term but as the plain meaning of the word itself shows it is merely meant to explain or clarify certain ambiguities which may have crept in the statutory provision. Sarathi in 'Interpretation of Statutes' while dwelling on the various aspect of an Explanation observes as follows: "(a) The object of an explanation is to understand the Act in the light of the explanation. (b) It does not ordinarily enlarge the scope of the original section which it explains, but only makes the meaning clear beyond dispute." 22 Swarup in 'Legislation and Interpretation' very aptly sums up the scope and effect of an Explanation thus : "Sometimes an explanation is appended to stress upon a particular thing which ordinarily would not appear clearly from the provisions of the section. The proper function of an explanation is to make plain or elucidate what is enacted in the substantive provision and not to add or subtract from it. Thus an explanation does not either restrict or extend the enacting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hodox function of an explanation is to explain the meaning and effect of the main provision to which it is an explanation and to clear up any doubt or ambiguity in it.......... Therefore, even though the provision in question has been called an Explanation, we must construe it according to its plain language and not on any a priori considerations." 28 Thus, from a conspectus of the authorities referred to above, it is manifest that the object of an Explanation to a statutory provision is (a) to explain the meaning and intendment of the Act itself, (b) where there is any obscurity or vagueness in the main enactment, to clarify the same so as to make it consistent with the dominant object which it seems to subserve, (c) to provide an additional support to the dominant object of the Act in order to make it meaningful and purposeful, (d) an Explanation cannot in any way interfere with or change the enactment or any part thereof but where some gap is left which is relevant for the purpose of the Explanation, in order to suppress the mischief and advance the object of the Act it can help or assist the Court in interpreting the true purport and intendment of the enactment, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the prosecution under Section 141 of the Act, arraigning of a company as an accused is imperative. The other categories of offenders can only be brought in the dragnet on the touchstone of vicarious liability as the same has been stipulated in the provision itself. We say so on the basis of the ratio laid down in C.V. Parekh (supra) which is a threeJudge Bench decision. Thus, the view expressed in Sheoratan Agarwal (supra) does not correctly lay down the law and, accordingly, is hereby overruled. The decision in Anil Hada (supra) is overruled with the qualifier as stated in paragraph 37. The decision in Modi Distilleries (supra) has to be treated to be restricted to its own facts as has been explained by us hereinabove." 30 Thus, it has been laid down in unequivocal words in the aforesaid decision that for maintaining the prosecution against the director under Section 141 of the Negotiable Instruments Act, arraigning of a company as an accused is imperative. In view of explanation to Section 141 of the Negotiable Instruments Act referred to above, this legal position needs to be automatically made applicable in case of prosecution against a partnership firm also. Therefore, it has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is important is that a partner of the firm is arraigned as an accused in the dragnet on the touchstone of vicarious liability, as is done in the case of directors of the company. Therefore, there is no reason at all to draw any distinction in respect of the law to be made applicable to a partnership firm and the company. 34 Moreover, the Legislature has already made it clear that the company includes any body corporate which includes a firm or other association of individuals and director in relation to a firm means a partner in the firm. On this count also, when Section 141 of the Negotiable Instruments Act and explanation thereto does not make any distinction between the company and the partnership firm, there is absolutely no reason to draw such distinction while making applicable the law laid down by the Apex Court in Aneeta Hada (supra) to the partnership firm merely because in that judgment the Apex Court was considering the eventuality of nonjoining of the company. The basic premise of holding either the director or the partner liable for prosecution being the same that of the vicarious liability. Therefore, once the company is held to be an essential party and that arraig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice. Explanation.For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability." "142. Cognizance of offences Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),( a) no Court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque; (b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to section 138 : [Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period;] (c) no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the legal entity being the principal accused and thought fit to issue process against the Directors by virtue of their vicarious liabilities under Section 141 of the Act. 41 The following are the questions I need to look into: (I) Whether the complaint under Section 138 of the Act the day it was filed was maintainable in law against the partners alone in the absence of the partnership firm being a legal entity not being impleaded as an accused? (II) Whether the Magistrate could have taken cognizance upon the complaint and ordered issue of process against the partners of the firm in the absence of the partnership firm being an accused? (III) Whether, after a period of almost twelve years, the complainant can file an application under Section 319 of the Cr.P.C. to implead the partnership firm as an accused to make the complaint maintainable and pray before the Magistrate to issue process to the firm as a legal entity? (IV) If the complainant is permitted to do so, could it not be said that indirectly he is substantially amending the complaint thereby changing the entire complexion of the same which is otherwise not permissible in law. (V) Could it be said that although ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dings. Section 351 provides for such a situation, but only if that person happens to be attending the Court. He can then be detained and proceeded against. There is no express provision in S. 351 for summoning such a person if he is not present in Court. Such a provision would make S. 351 fairly comprehensive, and we think it proper to expressly provide for that situation. 24.81. Section 351 assumes that the Magistrate proceeding under it has the power of taking cognizance of the new case. It does not, however, say in what manner cognizance is taken by the Magistrate. The modes of taking cognizance are mentioned in section 190, and are apparently exhaustive. The question is, whether against the newly added accused, cognizance will be supposed to have been taken on the Magistrate's own information under S. 190(1)(c), or only in the manner in which cognizance was first taken of the offence against the accused..................The question is important, because the methods of inquiry and trial in the two cases differ. About the true position under the existing law, there has been difference of opinion, and we think it should be made clear. It seems to us that the main purpose of thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y be summoned on the basis of some evidence available on the record. 47 Thus, having regard to the substantive provision of Section 319 of the Cr.P.C. read in conjunction with the objectives and reasons, Section 319 of the Cr.P.C. authorizes the Court concerned to take cognizance against any person who has not been tried with the accused, but, who appears to be a person not being accused has committed any offence along with the accused persons and in such circumstances that person can also be tried together with the original accused subject to the conditions precedent that under the provisions of Section 319 of the Cr.P.C. which must appear from the evidence during the course of inquiry or trial that any other person than the original accused have also committed the alleged offence along with the original accused, then only, cognizance can be taken under the provisions of Section 319. 48 Let me give a simple illustration. Take a case where the partnership firm being a legal entity is an accused. The trial Court has taken cognizance and issued process against the partnership firm as a legal entity. In the course of the trial, it comes to the notice of the Court that one of the par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s equally. 54 Similarly in Mangal Prasad Tamoli (dead) by L.Rs. v. Narvadeshwar Mishra (dead) by L.Rs. and Ors., [(2005) 3 SCC 422 : (AIR 2005 SC 1964)], the Supreme Court held that if an order at the initial stage is bad in law, then all further proceedings, consequent thereto, will be non est and have to be necessarily set aside. 55 In C. Albert Morris v. K. Chandrasekaran and Ors., [(2006) 1 SCC 228], the Supreme Court held that a right in law exists only and only when it has a lawful origin. 56 I am of the view that the application under Section 319 of the Cr.P.C. seeking impleadment of the partnership firm as an accused is more in the nature of a substantive amendment. There is no provision in the Code of Criminal Procedure giving right to the parties to file an application for amendment in the pleadings and give power to the lower Courts to allow the same. Had it been an application for substitution of the complainant on death or a technical flaw, the position would be different. What cannot be done directly by the Court, should not be done indirectly. 57 With regard to the aforesaid, I may quote a recent pronouncement of the Supreme Court in the case of S.R. Sukumar v. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... int does not relate either to a curable infirmity or the same cannot be corrected by a formal amendment or if there is likelihood of prejudice to the other side, then the Court shall not allow such amendment in the complaint." 58 The Supreme Court in Delhi Administration vs. Gurdip Uban and others [(2007) 7 SCC 296] has explained the principle of doing something indirectly which is otherwise not permitted. The said principle has been explained in para 17 observing thus: "17. . . . .This procedure is meant to save the time of Court and to preclude frivolous review petitions being filed and heard in open Court. However, with a view to avoid this procedure of 'no hearing,' we find that sometimes applications are filed for 'clarification,' 'modification' or 'recall' etc. not because any such clarification, modification is indeed necessary but because the applicant in reality wants a review and also wants a hearing, thus avoiding listing of the same in chambers by way of circulation. Such applications, if they are in substance review applications deserve to be rejected straightway inasmuch as the attempt is obviously to bypass O. XL, Rule 3 relating to circulation of the application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in Clause (c) of Section 138 of the Act, and hence the firm cannot be impleaded after the said period. 3. Section 142 of the Act reads as follows : "Cognizance of offences.Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), (a) no court shall take cognizance of any offence punishable under Section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque ; (b) such complaint is made within one month of the date on which the cause of action arises under Clause (c) of the proviso to Section 138 ;. (c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under Section 138," 4. Section 4(2) of the Code requires that all offences under any law, other than the Indian Penal Code, 1860, shall also be enquired into or tried and otherwise dealt with according to the provisions of the Code, subject to any other enactment which requires a different mode of trial for such offence. The nonobstante clause in Section 142 of the Act is intended to make it clear that the three matters specified in the sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the offence upon which the inquiry or trial was commenced". Hence the stage at which the new accused was brought in the array of the accused has no legal impact on the proceedings. 8. In the result, I dismiss both criminal miscellaneous cases in limine." 60 In M/s. Plywood House (supra), one of the submissions before the learned Single Judge of the Kerala High Court on behalf of the petitioner was that since there was no provision in the Negotiable Instruments Act for impleading a new accused in the case, the Court could not have recourse to the general provisions contained in the Cr.P.C. Such submission was canvassed by the accused to oppose an application filed by the complainant for impleading the firm as an additional accused. The submission was rejected on the ground that Section 142 of the Negotiable Instruments Act itself makes it clear that the prosecution proceedings contemplated therein are either untrammelled or unaided by anything contained in the Code. The learned Judge took the view that the nonobstante clause in Section 142 of the Act is intended to make it clear that the three matters specified in the section have an overriding effect on the provisions of the Cod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical Code, whereas every lawyer must acknowledge that the law is not always logical at all. 62 In Ambica Quarry Works vs. State of Gujarat & Others (1987) 1 SCC 213 (vide para 18), the Supreme Court observed: The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it. 63 In Bhavnagar University vs. Palitana Sugar Mills Pvt. Ltd (2003) 2 SCC 111 (vide para 59), the Supreme Court observed:- It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision. 64 The endeavour on the part of the learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... what is uncertain or to impose for the purpose of a statute an artificial construction of a word or phrase that would not otherwise prevail, but in each case it would be a question as to with what object the legislature has made such a deeming provision. In St. Aubyn and Ors. v/s. Attorney General, 1952 A.C. 15 at p.53 Lord Radcliffe observed thus: "The word 'deemed' is used a great deal in modern legislation. Sometimes it is used to impose for the purposes of a statute an artificial construction of a word or phrase that would not otherwise prevail. Sometimes it is used to put beyond doubt a particular construction that might otherwise be uncertain. Sometimes it is used to give a comprehensive description that includes what is obvious, what is uncertain and what is, in the ordinary sense, impossible." 70 In State of Tamil Nadu v. M/s. Arooran Sugars Ltd., reported in AIR 1997 SC 1815, a Constitution Bench, while dealing with the deeming provision in a statute, opined that the role of a provision in a statute creating legal fiction is well settled. Their Lordships referred to the decisions in East End Dwellings Co. Ltd. v/s. Finsbury Borough Council, 1952 AC 109, Chief Inspector ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that it will be presumed that the newly added person had been an accused person when the Court took cognizance of the complaint upon which the inquiry or trial was commenced, the same indicates that the Court is not empowered to take cognizance of any fresh offence if any accused is impleaded by invoking Section 319 and the newly added accused could be tried only for the offence already taken cognizance against the other accused. 73 The policy of the Code is that the offence can be taken cognizance of once only and not repeatedly upon discovery of further particulars. In a given case, the complainant may not even know the names and other particulars of the offenders, and it would, therefore, be sufficient for him to lodge a complaint making the persons who are known as the accused. When such a trial proceeds against the known accused, if the evidence led in trial discloses offences committed by other persons who could be tried along with the accused, then there need not be a fresh complaint and fresh order of cognizance against those persons. I reiterate that the complaint was liable to be dismissed on the very first day of its presentation and no process could have been issued a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn lapses to quash the proceedings alleging that the company was not properly described. So, in that case, the company was impleaded as a party but the description of the company was found to be a mistake, and, therefore, the apex court observed that this technical flaw of describing the name of the company can be rectified by amending the complaint. Therefore, that decision will not come in support of the respondent's contention because in this case, the respondent has deliberately omitted to implead the company. According to the learned senior counsel, Mr. Vanamamalai, the defect in this case, is a serious legal infirmity in the complaint itself, and, therefore, when the complaint itself has the initial defect, the proceedings cannot be allowed to continue against the petitioner. He also draws support from the decision in Delhi Municipality v. Ram Kishan, , wherein the Supreme Court observes that it is manifestly clear that proceedings against an accused in the initial stage can be quashed only if on the basis of the complaint or the papers accompanying the same, no offence is constituted. In other words, the test is that taking the allegations in the complaint, as they are, with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng upon certain decisions of the Kerala High Court, would contend that when the court has taken cognizance of the offence against a partner, it will not affect the proceedings for the failure to implied the other accused including the company. In Alex v. Vijayan [1994] 81 Comp Cas 910 (Ker); [1993] MWN 192, the Kerala High Court has held that when the managing partner of a firm was prosecuted under Section 138 of the Negotiable Instruments Act for the dishonour of the cheque issued by the managing partner and without impleading the partnership, the partners alone were prosecuted, the complaint is maintainable against the partners alone. Following this decision, the same court in M.O.H. Iqbal v. Uthaman (M) [1995] 82 Comp Cas 726; [1993] MWN 146, also repeated the same view that the complaint against the partners is maintainable without impleading the company under Section 138 of the Negotiable Instruments Act. In Plywood House v. Woodcraft Products Ltd. [1993] MWN 140; [1997] 88 Comp Cas 565 the Kerala High Court has again held that when the managing partner was prosecuted for the offence under Section 138 of the Negotiable Instruments Act without impleading the partnership, the pa ..... 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