Nikhil S.Kariel,J. - (1.)Heard learned Advocate Mr. Chetan K. Pandya for the applicant, learned APP Ms. M.D. Mehta for the respondent - State and learned Advocate Mr. Dharmesh V. Shah for the respondent No.2-original complainant.
(2.)By way of this application the applicant challenges the criminal complaint being Criminal Case No. 3784 of 2013, pending before the learned Chief Judicial Magistrate, Ahmedabad (Rural) filed by the respondent No.2 under Section 138 of the Negotiable Instruments Act, 1881 (for short "the NI Act'), on the ground that the cheque in question had been issued by the applicant in his capacity as partner of a partnership firm and since the partnership firm had not been joined as an accused, therefore the complaint would not be maintainable against the applicant in his individual capacity. The applicant contending that the learned Magistrate could not have taken cognizance of the offence without the partnership firm being impleaded as an accused.
(3.)Facts in brief can be enumerated as under :
3.1 A cheque dated 27.04.2013 drawn on the Axis Bank had been issued by the applicant in favour of the complainant as partner/ authorized signatory of M/s. Car Care Center for an amount of Rs. 10,00,000/- which upon being presented by the complainant on 27.04.2013 in his bank account with M/s. Corporation Bank had been returned with an endorsement "Fund Insufficient" on 29.04.2013, upon which a notice had been issued by the learned Advocate for the complainant on 03.05.2013 calling upon the applicant-accused to make the payment of the amount in the cheque in question. Incidentally, while the notice had been issued to the applicant - accused in his capacity as partner of M/s. Car Care Center, the allegations made in the notice are with regard to personal transaction between the complainant and the applicant. The said notice had been replied to by learned Advocate for the applicant-accused denying the allegations of any personal transaction, but stating about a transaction between the partnership firm and the complainant and whereas it is stated in the notice that the cheque was given as a security by the partnership firm for an order placed by the firm with the complainant. The complainant thereafter had filed the impugned complaint against the applicant-accused in his capacity as partner of M/s. Car Care Center without joining the partnership firm in question. The learned Chief Judicial Magistrate, Ahmedabad (Rural) had taken cognizance of the complaint vide order dated 28.05.2013 and summons had been issued to the applicant- accused herein. The complaint and the order of the learned Magistrate taking cognizance are challenged by way of the present application by the applicant.