1. By way of this petition filed under Section 482 of the Code of Criminal Procedure, the petitioners have prayed for the following substantive relief:-

“(i) Quash the complaint qua the petitioners in case No. 113-3 of 2013 (Annexure P-1) titled M/s Kayy Bee Sons Vs M/s Ross Robinz Biotech pending before the Ld. Judicial Magistrate 1st Class, Court No, 1, Solan, H.P. alongwith summoning order dated 26.08.2013 and all proceedings ensuing thereof.”

2. The case of the petitioners is that they were inducted as partners of respondent No. 2-partnership firm, on 10th of February, 2011. The complaint, which has been instituted against them and other respondents, copy whereof stands appended with the present petition as Annexure P-1, pertains purportedly to a liability of the said partnership firm, which was pertaining to the period prior to the date of their induction as partners, and in this view of the matter, taking into consideration the provisions of Section 31 (2) of the Indian Partnership Act, 1932, the proceedings, which have been initiated against the present petitioners under Section 138 of the Negotiable Instruments Act, are per se bad in law and the same are liable to be quashed and set aside as far as the petitioners are concerned.

3. Mr. Rohit Sharma, learned Counsel for the petitioners has argued that under the provisions of Section 138 of the Negotiable Instruments Act, the accused can be tried provided he is guilty of violating the provisions of the Negotiable Instruments Act. He submitted that here is a case, wherein a cheque was issued on behalf of the partnership firm, i.e. respondent No. 2, pertaining to a liability thereof relatable to a period when the petitioners were not partners of the partnership firm, and in this view of the matter, by no stretch of imagination, it can be said that because the cheque which was issued by one of the partners of the partnership firm stood dishonoured, the present petitioners also are liable to be prosecuted for the said act. He has relied upon Section 31(2) of the Indian Partnership Act, 1932 and submitted that the provisions thereof make it crystal clear that a person who is introduced as a partner into a firm does not thereby become liable for any act of the firm done before he became a partner and in view of said statutory provision also the proceedings against the petitioner are liable to be quashed and set aside. Learned Counsel for the petitioner has drawn the attention of the Court to order dated 16.03.2019, passed by learned Court below, appended with the petition as Annexure P-6 and fairly stated that during the pendency of the proceedings before the learned Court below, a prayer was made by the petitioners for their discharge but said prayer was rejected in terms of the order which has been passed vide Annexure P-6, perusal whereof would demonstrate that rejection of the prayer of the petitioners was not on merit but on technical grounds wherein learned Court held that it has no power to discharge the accused. In the course of his submissions, Mr. Sharma also referred to Annexure P-2, which is the copy of partnership deed vide which the petitioners were inducted as partners into the partnership firm dated 10th February, 2011, and by referring to the provisions thereof in general and Clause 15 in particular, he submitted that it was clearly mentioned in the said deed also that the petitioners shall not be responsible for any liability, responsibility and accountability of third party regarding the business activities as they are not working partners. On these grounds, it stands prayed that the petition be allowed and proceedings which were initiated under Section 138 of the Negotiable Instruments Act against the petitioners be quashed.

4. Opposing the petition, Mr. Neeraj Gupta, learned Senior Counsel appearing for respondent No. 1 has submitted that filing of the present petition is nothing but abuse of the process of law for the reason that it is apparent from the pleadings which are contained in the complaint filed under Section 138 of the Negotiable Instruments Act that the present petitioners were actively involved in the affairs of the partnership firm at the time when the cheque was dishonoured and not only were they aware of the issuance of the said cheque on behalf of the firm but they were party to it and it was with their consent that the cheque was issued. Mr. Gupta drew the attention of the Court to the averments, which are contained in paras 5 and 6 of the complaint (Annexure P-1) and argued that it is the specific case of the complainant that after the induction of the present petitioners as partners in the partnership firm, a meeting was held of the complainant through its representatives with accused No. 2 to 6, which includes the present petitioners, when the complainant was informed that as the partnership firm was going under financial crisis, on this count, new partners, i.e. present petitioners were added and introduced as partners. He further submitted that the reliance placed upon the provisions of Section 31(2) of the Partnership Act is totally misplaced for the reason that herein the cheque, dishonour of which led to filing of the complaint, is dated after the induction of the present petitioners as partners, therefore, there is no merit in the contention of learned Counsel for the petitioners that the petitioners are not liable for the said act of the firm. On these bases, he submitted that the present petition being without merit be dismissed. Mr. Gupta has also submitted that even assuming that the liability was pertaining to the period prior to the induction of the petitioners as partners, then also, after their induction as partners, they have acknowledged this liability and it was in order to discharge this liability that the cheque stood issued by the partnership firm, may be signed by one of its partners other than the present petitioners.

5. Mr. C.N. Singh, learned Counsel for respondent No. 5 has submitted that as he is one of the accused before the learned Court below, though presently declared as proclaimed offender, he does not intends to make submissions in the present proceedings so as not to prejudice his case before the learned Trial Court.

6. Though time was granted to the petitioners to take steps for the service of respondents No. 3 and 4, but as per report of the Registry, as the same were not taken, the case is being decided without service of summons upon said respondents because no order prejudicial to their interest is being passed by the Court in the present proceedings.

7. I have heard learned Counsel for the parties and also gone through the averments made in the petition as well as documents appended therewith.

8. As has been mentioned hereinabove, the petitioners alongwith other accused are facing trial under section 138 of the Negotiable Instruments Act on the basis of a complaint which has been filed by respondent No. 1. In terms of the complaint, in order to discharge liability, which the partnership firm owed to the complainant, a cheque was issued by the partnership firm, signed by one of its partners, dated 15.03.2013 for a sum of Rs. 6,86,230/- in favour of the complainant. The same was drawn upon Indian Overseas Bank, Solan. When the complainant deposited said cheque in its bank for encashment, the same was returned back to the complainant with remarks “insufficient funds”. Thereafter statutory notice was issued by the complainant to all the accused, which included the present petitioners also, calling upon them to make good the payment of cheque amount within a period of 15 days as from the date of receipt of the notice, and as payment was not made by the accused even after issuance of the notice, this led to filing of the complaint under Section 138 of the Negotiable Instruments Act.

9. This Court would like to make an observation at this very stage that it would not dwell upon the merits of the complaint for the reason that the Court does not intends to make any observation which may prejudice the case of either of the parties before the learned Court below. Suffice it to say that all that this Court will examine at this stage is as to whether the petitioners have made out a case under Section 482 of the Code of Criminal Procedure for quashing of the complaint against them or not.

10. This Court is of the view that when a complaint is filed under Section 138 of Negotiable Instruments Act, primarily the cause of action arises from the issuance and dishonour of the cheque which may be issued by one party to the other party to discharge the liability which it owes to the other party. The issue of the liability if any existing, in lieu whereof the cheque has been issued, is a triable issue which the learned Trial Court decides during the course of the trial. In the present case, though there is no dispute that the petitioners were inducted as partners of the firm on 10th February, 2011, but fact of the matter remains that the cheque, dishonour of which has led to filing of the complaint under Section 138 of the Negotiable Instruments Act bears the date 15th March, 2013, i.e. after the induction of the petitioners as partners of the partnership firm. In this view of the matter, this Court is of the considered view that the provisions of Section 31(2) of the Partnership Act which provide that a person who is introduced as a partner into a firm does not thereby become liable for any act of the firm done before he became a partner do not come to the rescue of the petitioners for the purpose of quashing of the complaint under Section 482 of the Code of Criminal Procedure because herein the act which led to the filing of complaint under Section 138 of the Negotiable Instruments Act is issuance and dishonour of the cheque which bears the date 15th March, 2013, i.e. post the date on induction of the present petitioners as partners of the partnership firm. This Court is refraining from making any observation with regard to contention of the petitioner that liability for which the cheque was issued was relatable to the period prior to the induction of the petitioners as partners of the firm because this is an issue which has to be decided by the learned Trial Court. However, at this stage, it cannot be said that on the strength of provisions of Section 31(2) of the Partnership Act, any case has been made out for quashing of the complaint against the petitioners.

11. In view of what has been discussed hereinabove, this petition is dismissed, however, it is clarified that the observations which have been made in this order are only for the purpose of adjudication of present petition only and learned Trial Court shall not be influenced in any matter whatsoever by the same in the course of adjudication of the case before it.

12. Record be returned to learned Court below forthwith. Represented parties through Counsel are directed to appear before the learned Court below on 18.07.2022.

13. Pending miscellaneous application(s), if any, also stand disposed of accordingly. Interim order(s), if any, stand vacated.