1 WP-1964-09.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Mhi CRIMINAL WRIT PETITION NO. 1964 OF 2009 Prakashbhai Haribhai Desai ) Age 55 years, Occ: Business, R/a Atit ) Bunglow, Karamsad Vidya Nagar Rd, ) Karamsad, Taluka and District Anand, ) Gujarat. ).. Petitioner Vs. 1) The State of Maharashtra ) 2) The Greater Bombay Co-op.Bank Ltd.) Through Miss Shilpa Purohit, having ) office at Aamir Industrial Estate, ) 2nd floor, Sun Mill Compund, ) Lower Parel (W), Mumbai 400 013. ).. Respondents Mr. Sandeep Kekane, i/b. Rajeev Sawant & Associates,Advocates, for the petitioner. Mr.D.R.More, APP, for the respondent No.1 - State. Mr. Pramod Das, i/b. Goenka Law Associates, Advocates, for the respondent No. 2. CORAM: J.H.BHATIA,J. DATE : 29th April, 2011. JUDGMENT: 1. Rule. Rule made returnable forthwith. Heard the learned Counsel for the parties. 2 WP-1964-09.sxw 2. To state in brief, the respondent No.2 filed the complaint under Section 138 of the Negotiable Instruments Act against Piyush Wire Netting Industries, a partnership firm and four of its partners. The present petitioner is accused No.3 and shown to be one of the partners of that firm. According to the complainant Bank, the accused No.1 firm had availed Bill Discounting Facility to the extent of Rs.40 lakh from the complainant. For repayment and for part discharge of the legally enforceable debt, the accused No.2 Piyush H. Desai issued a cheque for a sum of Rs.6 lakh drawn on the account of Nin Trading Pvt.Ltd. maintained with Bank of Baroda. The cheque was presented to the drawee Bank, but was returned unpaid with the remark "Insufficient Funds". According to the complainant, inspite of service of statutory notice on all the accused persons, the payment of the cheque amount was not made. Therefore, the complaint under Section 138 of Negotiable Instruments Act was filed against all of them. 3. According to the petitioner/accused No.3, he was not a director of Nin Trading Pvt.Ltd. nor he was signatory of the cheque and, therefore, he could not be proceeded against under Section 138 of the Negotiable Instruments Act. Even in the complaint, it is nowhere mentioned that the present petitioner was one of the directors of Nin Trading Pvt.Ltd. As per the complaint, as stated above, 3 WP-1964-09.sxw accused No.1 - Piyush Wire Netting Industries is a partnership firm of which accused Nos. 2 to 5 are the partners. However, admittedly, the cheque was not issued by the said partnership firm. The cheque was issued by accused No.2 - Piyush H. Desai on the account of Nin Trading Pvt.Ltd. Therefore, if the cheque was dishonoured and inspite of service of statutory notice, payment was not made, in view of the provisions of Sec. 138 read with Sec. 141 of Negotiable Instruments Act, the company which had issued the cheque and 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, shall be deemed to be guilty of the offence. Therefore, Nin Trading Pvt.Ltd. and every person who is responsible for the conduct of the business of that company at the time of commission of offence could be held guilty for the offence under Sec. 138. Accused No.2 - Piyush Desai being the signatory of the cheque would be personally responsible. If the amount was not paid inspite of notice after the cheque was dishonoured, the complainant could have a civil remedy against the partnership firm, which had availed the loan, and its partners, but as far as the criminal remedy under Sec. 138 of Negotiable Instruments Act is concerned, it can be available only against the company which had issued the cheque and had committed the offence under Sec. 138 and also against any person who was responsible for the conduct of the business of that company. As the present 4 WP-1964-09.sxw petitioner was neither the signatory of the cheque nor he was said to be director of or responsible for the conduct of business of Nin Trading Pvt.Ltd. at the time of commission of offence, he could not be held guilty for the offence under Sec. 138 in view of the language of Sec. 141 of the Negotiable Instruments Act. Therefore, to that extent, the proceedings under Sec. 138 are liable to be quashed. 4. For the aforesaid reasons, the petition is allowed in terms of prayer clause (b) and the order issuing process against the present petitioner in C.C. No.330/SS/2007 pending before the Metropolitan Magistrate, Mumbai, stands quashed. Rule made absolute accordingly. (J.H.BHATIA,J.)