HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION NO.1107 OF 2007 Date: 01.02.2010 Between: Nakka Chakradhara Rao ……Petitioner And: State of A.P., rep. by PP and 2 others ……Respondents. HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION NO.1107 OF 2007 ORDER: This petition is filed by the newly impleaded 2nd accused under Section 482 Cr.P.C., for quashing order dated 11.03.2005 passed by the III Additional Judicial Magistrate of the First Class, Kakinada in Criminal M.P.No.494 of 2005 in C.C.No.289 of 2001 by which the lower court impleaded the petitioner as the 2nd accused in that case on the ground that he is also one of the two partners in the accused (A-1)-firm. Subject matter of criminal case is offence punishable under Section 138 of the Negotiable Instruments Act, on the ground that cheque issued by Motipalli Appa Rao as partner of the 3rd respondent-firm was dishonoured, the 2nd respondent filed the complaint in the lower court against the 3rd respondent alone originally. Pending the criminal case, the 2nd respondent filed petition to implead the petitioner as the 2nd accused in the criminal case on the ground that he is also one of the partners in the firm along with Motipalli Appa Rao and he is also liable to discharge amount covered by the dishonoured cheque. As against the impugned order dated 11.03.2005 in Criminal M.P.No.494 of 2005 inC.C.No.289 of 2001, the petitioner previously filed Criminal Petition No.2834 of 2006 in this Court; but unfortunately the said criminal petition was dismissed by this Court on 07.11.2006 “for default”. Again the petitioner filed the present petition questioning the self same order passed by the lower court. Whether previous order dated 07.11.2006 of this Court in Criminal Petition No.2834 of 2006 was passed on merits or for the alleged default, 2nd petition for the self same relief in the same Court is not maintainable in law. On this ground alone this petition is liable to be dismissed. It is contended by the petitioner’s counsel that the petitioner retired from the 3rd respondent-firm and that therefore, the petitioner should not have been impleaded as co-accused in the criminal case. It is a question of fact whether the petitioner retired from the partnership or not and if so on what date and on what terms. That question cannot be gone into and decided by this Court in this petition under Section 482 Cr.P.C. It is further contended by the petitioner’s counsel that there is no allegation that the petitioner was responsible for day-to-day business of the firm and in the absence of the said allegation, the petitioner should not have been impleaded as the 2nd accused. On the other hand, the 2nd respondent’s counsel by placing copy of partnership deed, before this Court contended that as per terms of partnership deed bank account of the firm has to be operated by both or any of Motipalli Appa Rao and the petitioner and that therefore, it cannot be said that the petitioner was not participating in day-to-day business of the firm. Further, it is a question of fact which has to be decided by the trial court after both the parties leading their respective evidence during trial. Thirdly, it is open to the trial court to consider whether accusation against the petitioner as 2nd accused is sustainable or not because of there being no service of statutory notice to the petitioner before filing of the complaint in the lower court. Thus, viewed from any angle, this petition lacks merits. In the result, the petition is dismissed. ___________________________________ SAMUDRALA GOVINDARAJULU,J Date:01.02.2010. Gk. HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION NO.1107 OF 2007 Date: 01.02.2010 Gk.