Navin Chawla DECISION
Navin Chawla, J.
1. This petition has been filed under Section 482 of the Code of Criminal Procedure, 1973 (in short, 'Cr.P.C') praying for quashing of the complaint filed by the respondent herein under Section 138 of the Negotiable Instruments Act, 1881 (in short, 'NI Act'), being CC No. 3953/2020 titled M/s Zenith Rubber Private Limited v. M/s AakarPackart, pending adjudication before the Court of the learned Metropolitan Magistrate (NI Act-02), West District, Tis Hazari Courts, Delhi.
2. The above complaint has been filed by the respondent alleging M/s AakarPackart to be a Partnership Firm and the petitioner herein to be its Partner.
3. The learned counsel for the petitioner submits that apart from mentioning in the Memo of Parties that M/s AakarPackart is a Partnership Firm of which the petitioner herein is a Partner, there is no averment in the complaint to that effect. He further submits that the cheque in question has been issued by the wife of the petitioner-Mrs.Vishaka Ingale as the proprietor of M/s AakarPackart. He submits that, therefore, the petitioner could not have been made an accused in the said complaint, and the complaint is not maintainable as against him. He has drawn my attention to documents to support his plea that M/s AakarPackart is a proprietorship concern of Mrs.Vishaka Ingale.
4. On the other hand, the learned counsel for the respondent submits that the petitioner himself has been having regular business dealings on behalf of M/s AakarPackart with the respondent. He submits that the petitioner was also issuing cheques in discharge of the liabilities for those business dealings to the respondent. He submits that these are matters of evidence and, therefore, the complaint cannot be dismissed at this stage.
5. I have considered the submissions made by the learned counsels for the parties.
6. On the face of it, the cheque in question has been issued claiming M/s AakarPackart as a proprietorship concern. It is not the case of the respondent that the said cheque has been signed by the petitioner herein. The petitioner is, therefore, not the drawer of the cheque, basis whereof the complaint has been filed.
7. Under Section 138 of the NI Act, the liability is only of the drawer of the cheque. It is only where the offence is committed by a company, that a vicarious liability is created under Section 141 of the NI Act on the person who was in-charge of or was responsible for the affairs of the company or the conduct of the business of the company or on the person with whose consent or connivance or due to whose neglect as a director, manager, secretary or other officer bearer of the company, that the offence has been committed.
8. In Aparna A. Shah v. Sheth Developers (P) Ltd., MANU/SC/0598/2013 : 2013:INSC:398 : (2013) 8 SCC 71, the Supreme Court has reiterated that in a complaint under Section 138 of the Act, it is only the drawer of the cheque who can be prosecuted. It was held as under:
"27. In the light of the above discussion, we hold that under Section 138 of the Act, it is only the drawer of the cheque who can be prosecuted. In the case on hand, admittedly, the appellant is not a drawer of the cheque and she has not signed the same. A copy of the cheque was brought to our notice, though it contains the name of the appellant and her husband, the fact remains that ........