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TMI Blog2025 (5) TMI 635X X X X Extracts X X X X X X X X Extracts X X X X ..... ham Sharma as accused as well as Complaint Case No. 51386/16 under Section 138 Negotiable Instruments Act, 1881(N.I. Act) as abated due to demise of the sole accused Amreesh Sharma. 2. Briefly stated, the Petitioner- M/s Madhuram Paper Pvt. Ltd. a Private Limited Company, was in the business of sale and supply of Craft Papers, who had supplied raw material for manufacturing of Corrugated Board/kraft papers through Invoice bearing No. 1269 dated 30.12.2011 for a sum of Rs. 3,83,509/- and Invoice bearing No. 1279 dated 01.01.2012 for a sum of Rs. 4,04,449/-, to M/S Shubham Packaging Industries, Partnership Firm. 3. Sh. Amrish Sharma, Partner of Respondent No. 2 Firm had issued the Cheques No. 162310 dated 25.09.2012, No. 162312 dated 19.10. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed Partner, Mr. Amreesh Sharma for and on behalf of Respondent No. 2/Firm and therefore, Respondent No. 3 being the partner of Respondent No. 2- Firm is jointly and severally liable as per Section 25 of the Indian Partnership Act. Ld. ACMM has also failed to consider Section 17 (3), 18, 35 45(1), 47, and 48 (b) (i) of Indian Partnership Act. 10. Moreover, Ld. ACMM didn't appreciate that the Petitioner had served the Statutory Legal Notice dated 04.01.2013 on Respondent No. 2-Firm and its deceased Partner and thus, the Firm/Respondent No. 2 and Respondent No. 3/Shubham Sharma being the Partner of the Respondent No. 2, and managing and controlling the day to day affairs of the Firm, should have been allowed to be summoned under Section 319 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a, who is since deceased. The Complaint had not arrayed the Respondent No. 2, Partnership Firm or Respondent No. 3, /Shubham Sharma, other partner as accused in the said Complaint. 16. On receiving the information given on the summons sent for service the about the demise of Accused-Amreesh, an Application under Section 319 of the Cr.P.C. was preferred by the Petitioner to array Respondents no. 2 and 3 herein as accused, which was dismissed by the learned ACMM vide Order dated 27.10.2018 and has been challenged by way of the present Petition. 17. The main contention of the Petitioner is that three cheques were issued by the Deceased partner- Mr. Amreesh Sharma for and on behalf of Respondent No. 2-Firm and Respondent No. 3/Shubham Sharma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 of the Act, arraigning of a Company as an accused is imperative." The same principle is applicable to the present case. 22. Pertinently, unfortunate as it may be, while the Cheques were issued in the name Firm and the Legal Notice dated 04.01.2013 was sent to the Firm, but were but not made a party and only Mr. Amreesh Sharma was named as Respondent, in the Complaint under Section 138 and 142 NI Act. Without the Firm being a party, the Complaint only against the Partner was not maintainable at the time of its inception. 23. A still born Complaint, which also got abated on demise of Mr. Amreesh Sharma, could not have been infused with life after it got abated by impleading the Firm and Respondent No. 3, Shubham Sharma, as Respondents und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the consent, connivance, or is attributable to the neglect on the part of a director, manager, secretary, or other officer of the company." 26. Admittedly, the Cheques were not issued by Respondent No. 3-Shubham Sharma and there are no specific allegations against him that show that he was in overall control of the day-to-day business of the Firm on the date of default. Further, the accused partner i.e. Amreesh Sharma is already deceased. 27. In light of decision of the Apex Court in Dalip Hariramani (supra), the Ld. ACMM has rightly dismissed the Application under Section 319 Cr.P.C. and abated the Complaint on the death of the sole Accused. 28. There is no merit in the present Petition which is hereby dismissed. 29. The Petition ..... X X X X Extracts X X X X X X X X Extracts X X X X
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