2022 (9) TMI 380 - HC - Indian Laws

Dishonor of Cheque - acquittal of the accused - liability of retired partner from the partnership firm - preponderance of probability - rebuttal of the statutory presumption under Section 139 Negotiable Instrument Act - retirement deed explicitly say that the retiring partners will have no responsibility on the existing debts. - HELD THAT - The cheque is signed by one of them as partner. Retirement from the partnership firm subsequent to presentation of cheque will not exonerate the accused persons who had given the cheque when they were at the helm of affairs of the company on the date of presentation of cheque. The cheque was returned on the instruction of the accused to stop payment. Therefore, omission to issue statutory notice to other partners, who came to be inducted in between issuance of cheque and collection of the money, cannot be a reason for acquitting the accused, when it is specifically pleaded that they had actively participated in the transaction and issued the cheque. The statutory notice is issued to the Firm and its two partners. The two partners, who are the accused had replied saying that, they are no more partners of the firm. To the notice addressed to the Firm, no reply by the existing partners, who were administering the company. D.W-4, who is one of the existing partners had mounted the witness box but had admitted that, he have no knowledge about the partnership Firm or its partners. Therefore the Lower Appellate Court judgment acquitting the accused by reversing the well considered judgment of the Trial Court is liable to be set aside for being contrary to law and facts. The Criminal Appeal is Allowed.

Issues Involved:
1. Validity of the acquittal by the Lower Appellate Court.
2. Execution and validity of the cheque under Section 138 of the Negotiable Instruments Act.
3. Rebuttal of statutory presumption by the accused.
4. Impact of the accused's retirement from the partnership firm on their liability.
5. Non-disclosure of the loan transaction in Income Tax returns.

Issue-wise Detailed Analysis:

1. Validity of the Acquittal by the Lower Appellate Court:
The appeal challenges the acquittal by the Lower Appellate Court, which reversed the conviction by the Trial Court. The appellant contends that the Lower Appellate Court erred in disbelieving the evidence of P.W-1 and reversing the well-considered judgment of the Trial Court without sufficient reason.

2. Execution and Validity of the Cheque under Section 138 of the Negotiable Instruments Act:
The complaint under Section 138 of the Negotiable Instruments Act was based on a post-dated cheque for Rs.5,00,000/- given by the accused, which was dishonored with the endorsement "Payment Stopped by the drawer." The Trial Court found the accused guilty and convicted them, but the Lower Appellate Court acquitted them. The High Court noted that the accused admitted to signing the cheque and that the statutory presumption under Section 118 of the Negotiable Instruments Act was not sufficiently rebutted by the accused.

3. Rebuttal of Statutory Presumption by the Accused:
The accused argued that the cheque was not for an enforceable debt but was given by a deceased partner, Loganathan, for personal reasons. However, the High Court found that no documents were produced to prove Loganathan's authorization to use the firm's cheques for personal transactions. The High Court held that the statutory presumption under Section 139 of the Negotiable Instruments Act was not rebutted by the accused.

4. Impact of the Accused's Retirement from the Partnership Firm on Their Liability:
The accused claimed that they had retired from the partnership firm before the cheque was presented and thus were not liable. The High Court noted that the retirement deed stated that the retiring partners would not be responsible for any debts from 01/12/2006 onwards. However, the cheque was issued and presented before this date, and the accused were partners at the time of the transaction. The High Court held that retirement from the partnership firm after the issuance of the cheque does not exonerate the accused from liability.

5. Non-disclosure of the Loan Transaction in Income Tax Returns:
The Lower Appellate Court disbelieved the complainant's case partly because the loan transaction was not reflected in the complainant's Income Tax returns. The High Court held that non-disclosure of the transaction to the Income Tax Department may be an actionable wrong for the Income Tax Department but cannot be used as a defense under Section 138 of the Negotiable Instruments Act.

Conclusion:
The High Court found that the Lower Appellate Court had erred in acquitting the accused by giving undue weight to their defense and failing to consider the statutory presumptions under the Negotiable Instruments Act. The judgment of the Lower Appellate Court was set aside, and the conviction and sentence imposed by the Trial Court were restored. The accused were ordered to be secured and committed to prison to undergo the sentence imposed.

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