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TMI Blog2021 (10) TMI 759X X X X Extracts X X X X X X X X Extracts X X X X ..... herein/A2 is able to establish during the course of trial that she never had any direct role in the transactions of A1/Partnership Firm or that she would not gain if the Partnership Firm gets a profit or that she would not suffer a loss if the Partnership Firm ends up in loss over any particular transaction, then, evidence adduced in that regard would certainly be properly appreciated by the learned Magistrate. Inciting the parties to adduce evidence would be the proper course to be adopted to examine the points put forth by the petitioners herein, who is A3 in both the Calendar Cases - Petition dismissed. - Crl. O.P. Nos. 27705, 27966/2015, M.P. Nos. 1, 1, 2, 2/2015 in Crl.P. Nos. 27705 and 27966/2015 - - - Dated:- 30-9-2021 - C. V. Karthikeyan , J. For the Appellant : R. Baskar For the Respondents : N. Umapathi ORDER 1. Heard Mr. R. Baskar, learned counsel for the petitioner and Mr. N. Umapathi, learned counsel for the respondent. 2. Since common arguments were advanced with respect to both the petitions, a common order is passed. 3. In both the petitions, parties are also the same and they are also agitating more or less on the same issue. 4. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rm, had not signed the cheques. It is also pointed out that except for the allegation, she was responsible for all transactions and also for the day-to-day activities of A1/Firm, it is specifically pointed out that the only further statement made in the complaints is that the cheques were signed by A2/her husband in her presence. 11. The said averments have been interpreted in two different ways by both the learned counsels. 12. Mr. R. Baskar, learned counsel for the petitioner insists that the said averments are not sufficient to attract the offence u/s. 138 of the Negotiable Instruments Act. 13. On the other hand, Mr. N. Umapathi, learned counsel for the respondent insists that the said averments are more than sufficient to array the present petitioner herein as an accused and that she should necessarily have to face the prosecution. It is also alleged by the learned counsel for the respondent that these are issues to be examined during the course of trial and that, on a prima facie reading of the complaints, this Court can never come to any conclusion whether she was directly involved or whether she was not directly involved either with the day-to-day affairs of the Par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice; in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation.--For the purposes of this section, debt of other liability means a legally enforceable debt or other liability. 19. There is a further section, viz., Section 141 of the Act, which relates to offences by a Company. 20. Section 141 reads thus:- 141. Offences by companies.--(1) If the person committing an offence under section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad a direct control over the affairs of the Company. It should also be examined whether the named Director who seeks shelter from the Court, had a direct role in the transactions with the respondent. These are all aspects which will have to be examined so far as a Director is concerned. These are all points which had been stated in all the aforementioned judgments, which I would gladly follow. 24. A partner is placed on a slightly different footing. A partner gains when a Partnership Firm gets a profit and a partner loses if the Partnership Firm suffers a loss. The role of a partner oscillates with the role of the Partnership Firm. It is not strictly like a Director. There is a share in the profits and a share in the loss with respect to every transaction of the Partnership Firm. Unless specifically mentioned in the Partnership Deed, every partner either suffers from a loss owing to such transaction or gains from such a transaction. There is also a category of a sleeping partner or a minor inducted for the benefit of the Partnership. 25. Here is a case where both A2 and A3 are admittedly partners of A1/Firm. They are jointly responsible for both the profits to be earned by A1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e averments made, the respondent had specifically stated that the petitioner herein is also responsible for the day-t0-day activities of the Firm. It had been very specifically stated that the cheques were signed in her presence. Those are facts to be established and trial is the answer. 31. However, I would give more than ample opportunity to the petitioner herein/A2 to put forth all such defences with respect to the specific role played by her in the Partnership Firm which is an issue on fact and cannot be determined by this Court on a reading of the documents presented. If the petitioner herein/A2 is able to establish during the course of trial that she never had any direct role in the transactions of A1/Partnership Firm or that she would not gain if the Partnership Firm gets a profit or that she would not suffer a loss if the Partnership Firm ends up in loss over any particular transaction, then, evidence adduced in that regard would certainly be properly appreciated by the learned Magistrate. 32. All these issues require that the trial process to go on and therefore, I would hold that inciting the parties to adduce evidence would be the proper course to be adopted to exa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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