Brief Facts
- Respondent No. 1 and 2 are the partners of M/s Mouriya Coirs. Respondent No. 1 issued the cheque of the Firm in favour of the Complainant and the cheque was returned unpaid.
- Complainant issued demand notice to the Respondents and later filed the NI Complaint. The Respondents challenged the complainant and contested that the partnership firm was not arrayed as accused and thus, the complaint was not maintainable
Issues
- Whether the provisions of section 141 of the NI Act are also applicable in the cases of partnership firm?
- Whether the High Court was right in dismissing the complaint on the ground that the name of the partnership firm was not mentioned in the statutory notice issued by the appellant / complainant to the respondents under Section 138 of the Act and was also not arraigned as an accused in the complaint filed by the appellant / complainant?
Held
- The Supreme Court allowed the Petition and held that the complaint is maintainable against the partners of the Firm even when the demand notice was not issued to the Firm and the Firm was not arrayed as an accused in the Complaint. The findings of the Court are as under:
- Even in the absence of partnership firm being named as an accused, if the partners of the partnership firm are proceeded against, they being jointly and severally liable along with the partnership firm as well as inter-se the partners of the firm, the complaint is still maintainable. The accused in such a case would in substance be the partners of the partnership firm along with the firm itself. Since the liability is joint and several, even in the absence of a partnership firm being proceeded against by the complainant by issuance of legal notice as mandated under Section 138 of the Act or being made an accused specifically in a complaint filed under Section 200 of CrPC, (equivalent to Section 223 of the BNSS), such a complaint is maintainable.
- Thus, when it is a case of an offence committed by a company which is a body corporate stricto sensu, the vicarious liability on the categories of persons mentioned in sub-section (1) and sub-section (2) of Section 141 of the Act accordingly would be proceeded against and liable for the offence under Section 138 of the Act. In the case of a partnership firm on the other hand, when the offence has been proved against a partnership firm, the firm per se would not be liable, but liability would inevitably extend to the partners of the firm inasmuch as they would be personally, jointly and severally liable with the firm even when the offence is committed in the name of the partnership firm. On the facts of the present case and considering the stage of the trial, we find that absolutely no prejudice would be caused to the accused/respondents. The actual facts will have to be thrashed out at the trial. As to what impact the amendment will have on the existence of debt or other liability is for the Trial Court to decide based on the evidence. It was a curable irregularity which the Trial Court rightly addressed by allowing the amendment.
Relevant Para No.
9.9 and 9.10