9911796707
TMI Blog2022 (9) TMI 380X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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. - Crl. A. No. 313 of 2014 - - - Dated:- 23-8-2022 - THE HONOURABLE Dr. JUSTICE G. JAYACHANDRAN For the Appellant : Mr. N. Manokaran For the Respondents : Mr. S. Viswanathan JUDGMENT Acquittal by the Lower Appellate Court by reversing the judgment of conviction passed by the Trial Court, is the subject matter of this Appeal. 2. The Private Complaint filed under Section 138 of Negotiable Instrument Act, reads as below:- On 11/08/2006, the 2nd and 3rd accused as Managing Partner and Partner respectively, of first accused M/s Sri Kumaran Company , a Partnership Firm borrowed Rs.5 Lakhs from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts partners. The accounts of the Firm was maintained by Thiru.Senthil Raja and Thiru.Elango. Both of them are sons of Thiru.Sellamuthu. On demise of Thiru.Loganathan, the partnership deed was reconstituted with A2 and A3 alone. Later, Thiru.Sellamuthu and Tmt.Mohanasundari W/o.Senthilraja were inducted into the partnership and subsequently, A2 and A3 retired from the partnership with effect from 04/12/2006. When A2, A3 and one Loganathan were carrying on business in the name of M/s. Sri Kumaran Co., availed Thiru.Loganathan and Thiru.Senthil Raja for the personal loan from the complainant, the subject cheque was given. Later, Thiru.Loganathan died within one week of his marriage. He had financial transaction with the complainant and others. After his death, when the accounts were reconciled, they found 4 cheques missing. In the Panchayat, the complainant received Rs.4,20,000/- and returned two cheques. Since, the whereabouts of other two cheques not known, the bank was instructed stop payment. Senthil Raja, thereafter returned one cheque. There is no contract between the complainant and the accused A2 and A3. The cheque is not for any enforceable debt. 8. To prove their innoc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He claims that, there was Panchayat after the demise of the partner Loganathan. Then, he mentioned about the missing of 4 cheques signed and given to Thiru.Loganathan. He got back 3 cheques from Senthil Raja. Remaining one cheque was not returned to him, so he gave instruction to the bank to stop payment. However, he as well as P.W-1, who had deposed about the Panchayat admits that, while reducing the retirement deed, no recital about the missing cheque was incorporated. 12. The Lower Appellate Court, had considered the plea of the accused, that the cheque was given when Loganathan was at the helm of the partnership affairs. After the demise of Loganathan and reconstitution of the partnership firm, the Statutory Notice should have been issued to all the partners including the new partners. The transactions between the parties in respect of another firm in the same name at Kumarapalayam, in which, the wife of the complainant is one of the partner. Therefore, the Lower Appellate Court has presumed that the complainant know the reconstitution of the partnership firm at Thiruchengodu and ought to have caused notice to the present partner. Further, the Lower Appellate Court has peru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration of the Firm or Company and had knowledge about the issuance of cheque for clearing the debt will also be liable. In this case, the specific complainant is against A2 and A3 as partners who borrowed money. 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. 15. In the said circumstances, it is necessary to look at the recital of the retirement deed, whether it immunes the outgoing partners from all past, present and further debts or not; and how the present partners has to understand about the existing liability. In the reply notice Ex P-8 dated 04/01/2007, given on behalf of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -disclosure of the transaction to the Income Tax Department may be an actionable wrong for the Income Tax Department, but cannot be a shield for the accused under Section 138 of Negotiable Instrument Act. 18. 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. 19. 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. 20. In the result, the Criminal Appeal is Allowed. The judgment of the Lower Appellate Court in C.A.No.48 of 2012 dated 18.03.2014 is hereby set aside. The order of the trial Court in S.T.C.No.49 of 2012 dated 19.10.2012 is restored. The accused are to be secured and committed to prison to undergo the sentence imposed. - - TaxTMI - TMITax - Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
