Case Note & Summary
The applicants, Romell Housing LLP and Jude Romell, filed a criminal revision application before the Bombay High Court challenging the summoning order passed by the Metropolitan Magistrate, 37th Court, Borivali, Mumbai in C.C. No. 123/2023 under Section 138 of the Negotiable Instruments Act, 1881. The complaint was filed by Sameer Salim Shaikh alleging dishonour of a cheque issued by the applicants. The applicants contended that the complaint was not maintainable as it was filed by a person who was not authorized to represent the complainant partnership firm. The High Court examined the provisions of the Negotiable Instruments Act and the Limited Liability Partnership Act, 2008. The court held that a complaint under Section 138 must be filed by a person duly authorized by the firm. In the absence of such authorization, the summoning order is illegal. The court also noted that partners are not vicariously liable unless they are in charge of and responsible for the conduct of the business. The revision was allowed, and the summoning order was quashed.
Headnote
A) Criminal Procedure Code, 1973 - Section 397 - Criminal Revision - Maintainability - Revision against summoning order is maintainable when the order is patently illegal or suffers from material irregularity. (Para 1)
B) Negotiable Instruments Act, 1881 - Section 138 - Dishonour of Cheque - Complaint by Partnership Firm - Authority to File - A complaint under Section 138 must be filed by a person authorized by the partnership firm; if the complainant lacks authority, the summoning order is liable to be set aside. (Para 2)
C) Negotiable Instruments Act, 1881 - Section 138 - Dishonour of Cheque - Vicarious Liability - Partners of a firm are not automatically liable for the acts of the firm unless they are in charge of and responsible for the conduct of the business. (Para 3)
Issue of Consideration
Whether the summoning order passed by the Magistrate against the applicants under Section 138 of the Negotiable Instruments Act, 1881 is sustainable when the complaint was filed by a person who may not have been authorized to represent the complainant partnership firm.
Final Decision
The High Court allowed the criminal revision application and quashed the summoning order passed by the Metropolitan Magistrate, 37th Court, Borivali, Mumbai in C.C. No. 123/2023.
Law Points
- Criminal revision
- summoning order
- Section 138 Negotiable Instruments Act
- 1881
- partnership firm
- authority to file complaint
- designated partner
- limited liability partnership
- vicarious liability
- prima facie case
Case Details
2025 LawText (BOM) (09) 98
Criminal Revision Application No.108 of 2023
Mr. Girish Godbole, Senior Advocate with Mr. Drupad Patil i/by Mr. Dheeraj D. Patil for the applicant; Mr. Chaitanya Pendse with Mr. Atharva S. Jagtap for respondent No.1; Mrs. Rajashree V. Newton for respondent No.2-State; Mr. Rohan Sawant i/by Mr. Laxman Jain for respondent Nos.3 and 4
Romell Housing LLP and Jude Romell
Sameer Salim Shaikh, State of Maharashtra, Asiya Salim Shaikh, Asad Salim Shaikh
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Nature of Litigation
Criminal revision against summoning order in a cheque dishonour case under Section 138 of the Negotiable Instruments Act, 1881.
Remedy Sought
Quashing of the summoning order passed by the Metropolitan Magistrate, 37th Court, Borivali, Mumbai in C.C. No. 123/2023.
Filing Reason
The applicants challenged the summoning order on the ground that the complaint was filed by a person not authorized to represent the complainant partnership firm.
Previous Decisions
The Metropolitan Magistrate, 37th Court, Borivali, Mumbai had passed the summoning order in C.C. No. 123/2023.
Issues
Whether the summoning order under Section 138 of the Negotiable Instruments Act, 1881 is sustainable when the complaint was filed by an unauthorized person.
Whether partners of a limited liability partnership are vicariously liable for the acts of the firm under Section 138 of the Negotiable Instruments Act, 1881.
Submissions/Arguments
The applicants argued that the complaint was not maintainable as it was filed by a person who was not authorized to represent the complainant partnership firm.
The respondents argued that the summoning order was valid and the complaint was properly filed.
Ratio Decidendi
A complaint under Section 138 of the Negotiable Instruments Act, 1881 must be filed by a person duly authorized by the partnership firm. In the absence of such authorization, the summoning order is illegal. Partners are not vicariously liable unless they are in charge of and responsible for the conduct of the business.
Judgment Excerpts
A complaint under Section 138 must be filed by a person authorized by the partnership firm; if the complainant lacks authority, the summoning order is liable to be set aside.
Partners of a firm are not automatically liable for the acts of the firm unless they are in charge of and responsible for the conduct of the business.
Procedural History
The Metropolitan Magistrate, 37th Court, Borivali, Mumbai passed a summoning order in C.C. No. 123/2023 under Section 138 of the Negotiable Instruments Act, 1881. The applicants filed Criminal Revision Application No.108 of 2023 before the Bombay High Court challenging the summoning order.
Acts & Sections
- Negotiable Instruments Act, 1881: 138
- Limited Liability Partnership Act, 2008:
- Code of Criminal Procedure, 1973: 397
