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TMI Blog2019 (8) TMI 118X X X X Extracts X X X X X X X X Extracts X X X X ..... r for dishonour of the cheques. Respondent No.1 and the present petitioner are working in a building contract. It is alleged by respondent No.1 that he completed various constructions of the petitioner since 1980 and an amount of Rs. 12,00,000/- was outstanding. It is further alleged that the petitioner agreed to pay the same towards discharge of the said liability. Thereafter, the petitioner had issued two cheques of Rs. 7,00,000/- and Rs. 4,00,000/- dated 15.02.1992 and 06.09.1992 respectively, which were dishonoured with a remark "funds insufficient". It is further alleged that an intimation received by respondent No.1 on 15.03.2003. Thereafter, respondent No.1 issued notice to the petitioner on 20.03.1993, and the same was received by the petitioner on 23.03.1993. The petitioner had not paid the money, therefore cause of action under Section 138 of the N.I.Act accrued and consequently, respondent No.1 filed the aforesaid complaint. It appears from the record that the complaint was verified on 28.04.1993 and after verification, the learned Judge issued the process on 28.04.1993 against the petitioner under Section 138 of the N.I.Act. 4. It is the further case of the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner preferred Criminal Revision Application No. 499 of 2003 along with application for stay on 28.07.2003. The learned Additional Sessions Judge, Pune vide its impugned judgment and order dated 12.12.2003 was pleased to dismiss the Criminal Revision Application of the petitioner. Hence, this Writ Petition. 7. The learned Counsel appearing for the petitioner submits that respondent No.1 has not invoked the provision of Section 141 of the N.I.Act which is the mandatory requirement. Respondent No.1 has accused the petitioner in the individual capacity. He further submits that respondent No.1 does not show or have any averment in the complaint that the petitioner is acting on behalf of the firm. Respondent No.1 has not in the complaint averred about the liability of the partnership firm or the offence being committed by the partnership firm from which the cheques were being issued. He further submits that the Supreme Court judgment in the case of Anil Hada Vs. Indian Acrylic Ltd. 2000 (1) ALL MR 722 was cited by the petitioner, and also referred in the impugned judgment, but the Hon'ble Sessions Court has not considered the findings in paragraph Nos. 13 and 17 in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , therefore unless offence is pleaded against the firm, no partner can be prosecuted. 10. The learned Counsel appearing for respondent No.1 submits that, two cheques were issued in favour of respondent No.1 by the petitioner as a partner of the firm amounting to Rs. 7,00,000/- and Rs. 4,70,000/- dated 15.02.1992 and 06.09.1992 respectively. She further submits that the said cheques were dishonoured. Thereafter, respondent No.1 issued a demand notice dated 09.03.1992 to the petitioner. She further submits that the petitioner had not given any reply to the said demand notice issued by respondent No.1 hence, he filed a complaint on 22.04.1993. Thereafter, on 28.04.1993, the learned Judicial Magistrate First Class issued process against the petitioner. The order of issuance of process was never challenged by the petitioner. The plea was recorded and the petitioner challenge the order of recording the plea by way of revision which was held to be not maintainable. She further submits that petitioner filed an application below exhibit 51 in Criminal Case No. 1566 of 1993, for recalling the order of issuance of process passed by the learned Magistrate on 31.10.2002 i.e., after a period of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 41 of the N.I.Act. Assuming without admitting that firm is not prosecuted in terms of judgment delivered by Apex Court in the case of Anil Hada (supra), it becomes clear that even if company is not prosecuted, its other person cannot escape from liability which created through legal fiction envisaged under Section 141 of the N.I.Act. She further submits that the contention of the petitioner is that, Jaihind Construction Corporation firm was not prosecuted and demand notice was not issued to firm and in original complaint, Jaihind Construction Corporation was not joined as a party accused and in view thereof, the complaint is not maintainable. The said contention is completely misconceived and cannot be justified. She further submits that the petitioner is vicariously liable for the acts done by the firm being partner and thus he is arrayed in capacity of partner of the firm. 13. She further submits that the petitioner has contended that there is no averment in the complaint that petitioner is acting on behalf of firm and also about the offence being committed by the partnership firm. She further submits that if a complaint is perused, paragraph No. 3 of the complaint clearly shows ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Criminal Procedure Code does not contemplate a review of an order. Hence in the absence of any review power or inherent power with the subordinate criminal courts, the remedy lies in invoking Section 482 of the Code". Thus, the application filed by the petitioner for recalling the order of issuance of process was not maintainable and, therefore, further proceedings, arising out of the said order, initiated by the petitioner are rightly held to be not maintainable by the Sessions Court. 17. The contentions of the learned Counsel appearing for the petitioner that since a firm/ company is not made a party to the complaint and, therefore, the petitioner cannot be prosecuted, has been considered in detailed by the Additional Sessions Judge, Pune in the impugned order. The said Court made reference to the judgment of the Supreme Court in the case of Anil Hada (supra) and the Sessions Court recorded that, even if the company is not prosecuted, its other persons cannot escape liability which is created through the legal fiction envisaged under section 141 of the N.I.Act. The Sessions Court also observed in paragraph No.11 that, in the body of the complaint itself, it is clearly mentio ..... 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