TMI Blog2019 (10) TMI 361X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. Unless the company is arraigned as an accused the order of issuance of process against the applicant cannot legally sustain in view of the requirement of Section 138 of the NI Act. Considering that by allowing the present application, this Court is quashing the process issued against the present applicant for not joining the company, the interests of justice require that liberty be given to the first Respondent to move before the Court of competent jurisdiction for appropriate relief with a application under Section 14 of the Limitation Act seeking exclusion of the period during which he was prosecuting this case - Application allowed. - CRIMINAL APPLICATION NO. 538 OF 2018 - - - Dated:- 4-10-2019 - S.S. SHINDE, J. Mr. Satyavrat Joshi for Applicant. Mrs. M.R. Tidke, APP for Respondent State. Mr. Ramakant Yadav i/by RHY Juris Law Asso for Respondent No. 1. JUDGMENT 1. Rule. Rule made returnable forthwith, with the consent of counsel appearing for parties application is heard and disposed of finally at the stage of admission. 2. This Criminal Application is filed with following substantive prayers: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r seeking exemption of the applicant under Section 205 of the Cr.P.C and the second application was for seeking an adjournment wherein the applicant specifically averred that the copy of the complaint was not accompanied along with the summons received by him and hence the summons has not been served as prescribed by law. It is the case of the applicant that, the learned Metropolitan Magistrate was pleased to allow the exemption application and the second application seeking adjournment was rejected. 6. It is further the case of the applicant that, the complainant i.e. Respondent No. 1 herein, thereafter preferred an application for seeking bailable warrant against the applicant which was allowed by the learned Metropolitan Magistrate, and accordingly bailable warrant has been issued as against the applicant. Applicant being aggrieved and dissatisfied by the order of issuance of process dated 15.02.20118 and also the order of issuance of bailable warrant dated 06.04.2018 has preferred this Criminal Application. 7. Learned counsel appearing for the applicant submits that, the learned Magistrate did not appreciate that, demand notice issued by the first Respondent a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l placed reliance upon a ratio laid down in the case of Aneeta Hada Versus Godfather Travels and Trous (Pvt.) Ltd (2012) 5 SCC 661. It is submitted that, the aforesaid ruling was also followed by the Bombay High Court (Coram : Dr. Shalini Phansalkar-Joshi,J.) in the case of Philip J. V/s. Ashapura Minechem Ltd and Ors. Criminal Writ Petition No. 2909 of 2013 decided on 29th January 2016. 9. It is submitted that, the order of issuance of process which is passed by the learned Metropolitan Magistrate is only under the provisions of Section 138 of the N.I. Act and the same has not been issued under Section 141 of the N.I. Act since the role of the applicant is attempted to shown to be that of a drawer / signatory by the first Respondent herein. It is further submitted that, the first Respondent herein has deliberately suppressed from the Trial Court that the subject cheque were never signed by the applicant in his individual capacity and the same is evident from the bare perusal of aforesaid two said cheques. It is submitted that, it is in this circumstance that unless and until the drawer of the cheques was sought to be prosecuted, the applicant could not have be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aken a view that the prosecution launched against only one of the partners of the partnership firm, without joining the partnership firm, cannot be maintainable and on this very ground, the process issued against the applicant is liable to be quashed and set aside. In the said judgment this Court (Coram : Dr. Shalini Phansalkar-Joshi,J.) has relied upon the exposition of law in the case of Aneeta Hada (Supra). Paragraph nos. 13 to 17 of the said judgment reads as under:- 13. However, in my considered opinion, the conclusions drawn by the Apex Court in the case of Aneeta Hada (Supra) are not based merely on the fact that the company is a separate legal entity and juristic person, but these conclusions are drawn on the basis of the fact that section 141 of the NI Act deals with vicarious liability. In paras 58 and 59 of the said judgment, referred above, the Apex Court has referred to the wording in section 141 of the NI Act and observed that commission of offence by a company is an express condition precedent to attract vicarious liability of others. It was further held that the words as well as the company appearing in the section make is absolutely unmistakably clea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n that judgment the Apex Court was considering the eventuality of non-joining 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 essential party and that arraigning of a company as an accused is imperative for prosecution under section 141 of the NI Act, it necessarily follows that arraigning of a partnership firm is also imperative for prosecution against the partners under section 141 of the NI Act. The prosecution launched against only one of the partners of the partnership firm, without joining the partnership firm, cannot be maintainable and on this very ground, the process issued against the petitioner is liable to be quashed and set aside. 17. In this view of the matter, I am also supported by the judgment of the Delhi High Court in Vijay Power Generators Ltd. vs. Sumit Seth, 2914 All M.R. (Cri.) Journal 305, wherein also it has been held that unless the partnership firm is prosecuted and convicted, the partner thereof cannot be convicted with the aid of section 141 of the NI Act. 13. In the present case, the app ..... 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