JUDGMENT : 1. Heard the parties. 2. This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 482 Cr.P.C. with a prayer to quash the entire criminal proceeding as well as the order dated 09.09.2022, passed in Complaint Case No. 394 of 2016 whereby and where under the learned Judicial Magistrate -1st Class, Jamshedpur allowed the petition filed under Section 319 Cr.P.C. and added the petitioner which is the partnership firm as an accused of the said case. 3. The brief facts of the case is that the co-accused –Sunil M. Bafna as a representative/authorized signatory on behalf of the petitioner issued seven cheques which were dishonoured and the present Complaint Case No. 394 of 2016 relates to two cheques dated 05.12.2015 for Rs.19,00,000/- and dated 06.12.2015 for Rs.17,00,000/- and both the cheques were presented in the bank by the complainant and the same were returned by the banker on account of ‘funds insufficient’ vide two cheque return memos both dated 08.12.2015. The notice demanding payment of the amount of the cheques was issued on 02.01.2016 to the co-accused Sunil M. Bafna only and not to the petitioner partnership firm and online delivery report of the said registered letter by which the demand notice was made through Indian Post shows that the registered letters were delivered on 04.01.2016 upon Sunil M. Bafna only. The complaint was filed on 10.02.2016 and the learned Judicial Magistrate -1st Class, Jamshedpur found prima facie case under Section 138 of the Negotiable Instrument Act against the sole accused –Sunil M. Bafna and ordered for issuance of summons. The co-accused –Sunil M. Bafna filed Cr.M.P. No. 3055 of 2017 with a prayer for quashing the entire criminal proceeding on the ground that the said sole accused –Sunil M. Bafna is a partner of M/s Sunder Transport and the partnership firm has not been arrayed as an accused and the Co-ordinate Bench of this Court vide order dated 19.07.2019, passed in the said Cr.M.P. No. 3055 of 2017 dismissed the criminal miscellaneous petition with an opportunity to the petitioners to raise all the points in its defence at appropriate stage before the trial court. Thereafter the complainant-opposite party no.2 of this criminal miscellaneous petition filed an application under Section 319 of the Code of Criminal Procedure with a prayer for summoning the petitioner-partnership firm as an accused additionally. Thereafter the complainant-opposite party no.2 of this criminal miscellaneous petition filed an application under Section 319 of the Code of Criminal Procedure with a prayer for summoning the petitioner-partnership firm as an accused additionally. The learned Judicial Magistrate -1st Class, Jamshedpur, vide order dated 09.09.2022 has observed that since Section 319 (1) Cr.P.C. envisages that any person who is not an accused has committed an offence for which such person could be tried together with the accused, the court may proceed against such person for the offence which he appears to have committed and as per Section 141(1) of the Negotiable Instrument Act, 1881, if a person commits offence under Section 138 of the Negotiable Instrument Act, 1881 is a company, every person who at the time of the offence was committed, was in-charge of and was responsible for the company, for the conduct of the business of the company as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly and also considering that Sunil M. Bafna has issued the cheque as authorized signatory of Sunder Transport in favour of the complainant which was dishonoured; observed that without impleading the petitioner herein -M/s Sunder Transport as an accused, the matter cannot be decided properly, allowed the petition of the complainant and impleaded Sunder Transport as accused in the case. 4. It is submitted by the learned counsel for the petitioner, relying upon the Judgment of Hon’ble Supreme Court of India, in the case of N. Harihara Krishnan Vs. J. Thomas, reported in (2018) 13 SCC 663 , para -27, 28 & 29 of which reads as under:- “27. By the nature of the offence under Section 138 of the Act, the first ingredient constituting the offence is the fact that a person drew a cheque. The identity of the drawer of the cheque is necessarily required to be known to the complainant (payee) and needs investigation and would not normally be in dispute unless the person who is alleged to have drawn a cheque disputes that very fact. The identity of the drawer of the cheque is necessarily required to be known to the complainant (payee) and needs investigation and would not normally be in dispute unless the person who is alleged to have drawn a cheque disputes that very fact. The other facts required to be proved for securing the punishment of the person who drew a cheque that eventually got dishonoured is that the payee of the cheque did in fact comply with each one of the steps contemplated under Section 138 of the Act before initiating prosecution. Because it is already held by this Court that failure to comply with any one of the steps contemplated under Section 138 would not provide “cause of action for prosecution”. Therefore, in the context of a prosecution under Section 138, the concept of taking cognizance of the offence but not the offender is not appropriate. Unless the complaint contains all the necessary factual allegations constituting each of the ingredients of the offence under Section 138, the Court cannot take cognizance of the offence. Disclosure of the name of the person drawing the cheque is one of the factual allegations which a complaint is required to contain. Otherwise in the absence of any authority of law to investigate the offence under Section 138, there would be no person against whom a court can proceed. There cannot be a prosecution without an accused. The offence under Section 138 is person specific. Therefore, Parliament declared under Section 142 that the provisions dealing with taking cognizance contained in the CrPC should give way to the procedure prescribed under Section 142. Hence the opening of non obstante clause under Section 142. It must also be remembered that Section 142 does not either contemplate a report to the police or authorise the Court taking cognizance to direct the police to investigate into the complaint. 28. The question whether the respondent had sufficient cause for not filing the complaint against Dakshin within the period prescribed under the Act is not examined by either of the courts below. As rightly pointed out, the application, which is the subject-matter of the instant appeal purportedly filed invoking Section 319 CrPC, is only a device by which the respondent seeks to initiate prosecution against Dakshin beyond the period of limitation stipulated under the Act. 29. No doubt Section 142 authorises the court to condone the delay in appropriate cases. As rightly pointed out, the application, which is the subject-matter of the instant appeal purportedly filed invoking Section 319 CrPC, is only a device by which the respondent seeks to initiate prosecution against Dakshin beyond the period of limitation stipulated under the Act. 29. No doubt Section 142 authorises the court to condone the delay in appropriate cases. We find no reason to condone the delay. The justification advanced by the respondent that it is during the course of the trial, the respondent realised that the cheque in question was drawn on the account of Dakshin is a manifestly false statement. On the face of the cheque, it is clear that it was drawn on the account of Dakshin. Admittedly the respondent issued a notice contemplated under clause (b) of the proviso to Section 138 to Dakshin. The fact is recorded by the High Court. The relevant portion is already extracted in para 15.” (Emphasis supplied) That, it is a settled principle of law that in the context of a prosecution under Section 138 of the Negotiable Instrument Act, the concept of taking cognizance of the offence but not the offender is not appropriate. The offence punishable under Section 138 of the Negotiable Instrument Act is person specific one, so unlike in other cases, the jurisdiction of a trial court cannot be invoked under Section 319 Cr.P.C. beyond the period of limitation stipulated under the Negotiable Instrument Act and in this case, neither any prayer for condoning the delay was sought for nor any delay was condoned and no demand notice was ever served upon the petitioner which is a sine-qua-non for arraying a person as an accused in a case relating to the offence punishable under Section 138 of the Negotiable Instrument Act. As undisputedly, the words ‘For Sunder Transport’ was very much written on the cheque issued by Sunil N. Bafna and in the complaint, nowhere, it has been mentioned that the cheque was issued for Sunder Transport; hence, the learned Magistrate has committed a grave error by impleading the petitioner as accused by throwing the settled principle of law to the woods. 5. It is next submitted by the learned counsel for the petitioner, relying upon the Judgment of Himanshu Vs. B. Shivamurthy and Another, reported in (2019) 3 SCC 797 , para -13 of which reads as under:- “13. 5. It is next submitted by the learned counsel for the petitioner, relying upon the Judgment of Himanshu Vs. B. Shivamurthy and Another, reported in (2019) 3 SCC 797 , para -13 of which reads as under:- “13. In the absence of the company being arraigned as an accused, a complaint against the appellant was therefore not maintainable. The appellant had signed the cheque as a Director of the company and for and on its behalf. Moreover, in the absence of a notice of demand being served on the company and without compliance with the proviso to Section 138, the High Court was in error in holding that the company could now be arraigned as an accused.” (Emphasis supplied) That in the absence of a notice of demand being served on the partnership firm and without compliance with the proviso to Section 138 of the Negotiable Instrument Act, cannot be arrayed as an accused, and on this score also, the order dated 09.09.2022, impleading the petitioner as an accused is not sustainable in law. Hence, it is submitted that the order dated 09.09.2022, passed in Complaint Case No. 394 of 2016 whereby and where under the learned Judicial Magistrate -1st Class, Jamshedpur allowed the petition filed under Section 319 Cr.P.C. and added the petitioner which is the partnership firm as an accused of the said case, be quashed and set aside. 6. The learned Spl. P.P. and the learned counsel for the opposite party no.2 on the other hand vehemently opposes the prayer for quashing the order dated 09.09.2022, passed in Complaint Case No. 394 of 2016 whereby and where under the learned Judicial Magistrate -1st Class, Jamshedpur allowed the petition filed under Section 319 Cr.P.C. and added the petitioner which is the partnership firm as an accused of the said case. Drawing attention of this Court to Section 319(4)(b) of the Code of Criminal Procedure which reads as under:- 319. Power to proceed against other persons appearing to be guilty of offence.— (1) xxxxx. (2) xxxxx. (3) xxxxx. (4) Where the Court proceeds against any person under sub-section (1) then— (a) xxxxx; (b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced. (2) xxxxx. (3) xxxxx. (4) Where the Court proceeds against any person under sub-section (1) then— (a) xxxxx; (b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced. It is submitted by the learned counsel for the opposite party no.2 that when the court proceeds against any person under Section 319(1) of the Cr.P.C. then the case may proceed against such person as if such person has been an accused person when the court took cognizance of the offence upon which enquiry or trial was commenced. It is next submitted by the learned counsel for the opposite party no.2 that since the beginning, the complainant was not aware of the fact that Sunder Transport is a partnership firm, hence it did not feel it necessary to arraign it as an accused in the complaint or to serve notice of demand upon it. Hence, it is submitted that there being no illegality in the order dated 09.09.2022, passed in Complaint Case No. 394 of 2016 whereby and where under the learned Judicial Magistrate -1st Class, Jamshedpur allowed the petition filed under Section 319 Cr.P.C. and added the petitioner which is the partnership firm as an accused of the said case, this criminal miscellaneous petition being without any merit be dismissed. 7. Having heard the submissions made at the Bar and after going through the materials in the record, it is pertinent to mention here that as has been held by the Hon’ble Supreme Court of India in the case of N. Harihara Krishnan Vs. J. Thomas (supra), that in the context of a prosecution under Section 138 of the Negotiable Instrument Act, the concept of taking cognizance of the offence but not the offender is not appropriate. In the context of a prosecution under Section 138 of the Negotiable Instrument Act, the cognizance of the offence is to be taken against the offender as well and each of such offender has to be served with a demand notice as envisaged in the proviso to Section 138 of the Negotiable Instrument Act as has been held by the Hon’ble Supreme Court of India in the case of Himanshu Vs. B. Shivamurthy and Another (supra). 8. B. Shivamurthy and Another (supra). 8. Now coming to the facts of the case, undisputedly, no notice of demand was ever served upon the petitioner. The deeming provision as envisaged in Section 319(4)(b) is not applicable to the prosecution under Section 138 of the Negotiable Instrument Act; in view of the portion of the judgment of the Hon’ble Supreme Court of India in the case of N. Harihara Krishnan Vs. J. Thomas (supra), the relevant portion of which has already been quoted in the foregoing paragraphs of this judgment. Undisputedly, the time period within which the cognizance could have been taken in respect of the offence against the petitioner has elapsed since long and there is no prayer to condone the delay nor the delay in taking cognizance has been condoned; by the trial court. 9. Under such circumstances, this Court is of the considered view that the learned Judicial Magistrate -1st Class, Jamshedpur has committed a grave illegality in impleading the petitioner as an accused in the case. Hence, the order dated 09.09.2022, passed in Complaint Case No. 394 of 2016 whereby and where under the learned Judicial Magistrate -1st Class, Jamshedpur allowed the petition filed under Section 319 Cr.P.C. and added the petitioner which is the partnership firm as an accused of the said case, is not sustainable in law and the continuation of the same will amount to abuse of process of law. Accordingly, the same is quashed and set aside. 10. In the result, this criminal miscellaneous petition is allowed. 11. The interim granted earlier stands vacated.