Judgment:
A. Ramamurthi, J.
1. The above two revision petitions are filed by the petitioner/third accused in S.T.C. Nos. 1396 and 894 of 1998 respectively on the file of the Judicial Magistrate Court, Udumalpet, and he filed these revisions aggrieved against the orders passed in CM.P. Nos. 6230 and 5918 of 1998 respectively, dated October 14, 1998.
2. The case in brief for disposal of both the revision petitions is as follows :
The respondent filed two complaints under Sections 138 and 142 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the N.I. Act'), against three accused and the petitioner is the third accused. The first accused is the firm and the company issued a cheque dated January 30, 1998, of M/s. City Union Bank Limited, Tiruppur, for Rs. 1,57,984 in favour of the complainant in one case. Similarly in the other case also on March 15, 1998, a cheque for Rs. 2 lakhs was issued by the second accused in the capacity of the partner in the accused firm. When both the cheques were presented for encashment, they were dishonoured and returned on the ground of 'insufficient funds'. Statutory notice was also sent to all the accused concerned and after complying with all the formalities the respondent has filed the complaints. The petitioner/third accused filed separate application for discharge and it was opposed by the respondent/complainant and after hearing the parties, the learned Magistrate dismissed both the applications and aggrieved against this, the present revision petitions have been filed.
3. Since the parties in both the cases are one and the same and the point in issue raised by the petitioner/third accused is also one and the same, a common order is pronounced. The parties will be hereinafter referred to as they are described in the complaint to avoid confusion.
4. Heard learned Counsels of both the sides.
5. The point that arises for consideration is whether the orders passed by the Court below are proper and correct?
6. Point.--It is not in dispute that the complainant fi'ed the aforesaid two complaints for offences under Sections 138 and 142 of the Negotiable Instruments Act. The first accused is the firm and accused Nos. 2 and 3 are said to be partners in the first accused firm. The impugned cheques in question were issued on behalf of the first accused-company signed by the second accused. Learned Counsel for the revision petitioner/third accused mainly contended that there is no allegation against the third accused to proceed further in the case. There is also no averment in the complaint or in the sworn statement that the petitioner is one of the partners of the firm incharge of or responsible for the day-to-day affairs of the company. Admittedly, the cheques were not signed by the third accused. Mere designation of the partner by itself does not subject him liable for the offence committed by the firm There was no material as on date to prosecute the third accused for the offence under Section 138. There is no prima facie case to prosecute the petitioner, who is a sleeping partner of the firm. Mere averment in the complaints that the cheques were issued with the knowledge of the third accused is not enough to prosecute him.
7. It is seen from the complaints that the third accused has been designated as a partner in the first accused-company. Admittedly, the cheques in question were issued only by the first and second accused and the third accused has no role in the same. It is seen from para 6 of the complaints that the second accused had issued the cheque on behalf of the first accused firm with the knowledge of the third accused knowing fully well that there was no sufficient funds. Apart from this general allegation, nothing has been stated in the complaints about the part played by the third accused. It is not stated in the complaints that the third accused is in charge of the day-to-day administration of the company. Unfortunately the Court below has dismissed the applications filed by the third accused on the ground that this matter can be decided only in the course of trial. Simply because there is a sole document to show that the third accused had received the goods for and on behalf of the first accused-company on one occasion, it will not establish that the third accused had active role in the day-to-day work of the first accused-company.
8. Learned Counsel for the third accused relied on the decision reported in Col. R.S. Aggarwal, M.D., Haryana Petrochemicals Ltd. v. Ashok Leyland Finance Ltd. (1998) 1 LW (Crl.) 24, wherein it was held that to bring the persons within the purview of Section 138 of the Negotiable Instruments Act there must be an allegation prima facie disclosing the commission of offence as regards persons shown as accused.
9. Reliance is also placed upon another decision in Coronation Printing Ink ., :, that partners who are not responsible for day-to-day affairs of accused firm or company need not be arrayed as accused. These two decisions are applicable to the case on hand. There should be some prima facie material to proceed further against the petitioner. As adverted to, he is not the signatory to the cheques in question. There is no allegation in the complaints or in the sworn statement that the third accused was incharge of the day-to-day affairs of the company and in the absence of any such averment, I am of the view that there is no prima facie material to proceed further against the third accused. The reasoning given by the Court below that the part played by the third accused can be considered during the course of trial cannot be considered. If there is a proper allegation in the complaints, then only the parties can be directed to lead evidence and establish the same. But in the present petitions concerned, when the third accused had come forward with a specific stand, it is the duly of the respondent/complainant to rebut the same. In view of the discussion and also the decisions referred to above, I am of the view that the Court below has not appreciated the contentions raised by the petitioner/third accused and had mechanically dismissed the applications without knowing the consequence. Hence, the point is answered accordingly.
10. For the reasons stated above, both the revision petitions are allowed and the orders passed by the court below dated October 14, 1998 are set aside and consequently C.M.P. Nos. 6230 and 5918 of 1998 are allowed. Crl. M.P. No. 490 of 1999 is closed.