The Appellant had filed the complaints against the Respondent for the offence under Section 138 of the Negotiable Instruments Act. These Criminal Appeals were filed by M/s.K.G.Denim Limited, Garments Business Division, Coimbatore, represented by its Law Officer R.Srinivasan, against the order dated 13.8.2002 passed in STC.Nos.535 and 536/1999 by the learned Judicial Magistrate III, Coimbatore, which acquitted M/s.J.P.Knito Impex, Tiruppur, represented by its Partner Vijayakumar.
Mr.G.Saravanan and Mr.D.Saravanan appeared for the Appellant, while Mr.G.M.Ramasubramaniam was the Senior Counsel for the Respondent. The Hon’ble Mrs.Justice Aruna Jagadeesan presided over the proceedings in the High Court of Judicature at Madras on 5th February 2010
K G Denim placed a purchase order for the supply of banian materials on 17.9.1997 and paid a sum of Rs.20,000/- by cheque dated 29.9.1997 and further a sum of Rs.1,85,000/- by cheque dated 4.11.1997, in all totalling Rs.2,05,000/- as advance to J P Knito. However, J P Knito supplied the materials only for the value of Rs.39,600/- and was not able to supply goods for the balance sum of Rs.1,65,400/-. Knito promised to pay back the sum in two cheques dated 10.7.1998 for Rs.80,000/- and dated 20.7.1998 for Rs.85,400/- and the said two cheques were sent Knito with a covering letter dated 29.6.1998 signed by its one of the Partners D.Vijay Kumar. When K G Denim had presented both cheques for encashment, the banker said cheques were dishonoured on 12.8.1998 for the reason “Exceeds Arrangement”. Immediately on 21.8.1998, the K G Denim issued a statutory notice on J P Knito to pay the sum due and on 10.9.1998, the Knito sent a reply, admitting their liability, but the said that are unable to clear the same and the said letter was also signed by the said D.Vijay Kumar in the capacity of the partner of J P Knito.
The case was taken on file in STC.Nos.535 and 536/1999 by the Judicial Magistrate III, Coimbatore and necessary charges were framed. In order to substantiate the charges levelled against the accused, K G Denim examined as many as three witnesses (PW.1 to PW.3} and also relied on Exs.P1 to P6.
On completion of the evidence, the Knito was questioned under Section 313 Cr.PC as to the incriminating circumstances and they said that all the witness and evidences are false.
The court below, after hearing the arguments advanced on either side and looking into the materials available on record, found the accused/Respondent not guilty and acquitted the Respondent, which is challenged in this Criminal Appeal.
Mr. Learned Senior Counsel G. Saravanan argued that a Vijayakumar always represented the defendant company and gave a response confirming that the check was rejected. Control has been exercised against Respondent Partnership’s liability and therefore Vijayakumar mentioned above will be liable to the defendant as a partner on behalf of the Respondent Company. Pursuant to Article 141 of the Negotiation Law, if the defendant does not sign or does not give the notice, it will be argued that the partner is responsible and does not consider giving notice to the partner.
Knowledgeable attorney, M/s.Target Overseas Exports Pvt Limited and others Vs. A.M.Iqbal et al. [2005-Crl.
LJ-1931], in support of his argument that the language of section 141 of the Code of Criminal Procedure does not indicate that those accused under section 141 of the Code are entitled to notice under section 138 provision (b). The knowledgeable lawyer also ruled that Gujarat High Court M.S. Raghunathan Vs. rajesh shah co.
et al. [2005-Cr.LJ -2077] and argued that the notification received by the defendant company’s complainant was sufficient and that Article 141 of the Law did not provide a separate notification to the company’s shareholders.
On the other hand, Mr. GM Ramasubramaniam, B.Raman et al. Vs.
M/s.Shasun Chemicals and Drugs Limited [2006-Cr.LJ-4552] shall construe the meaning of the word “drawer” in article 138 of the said Law to mean a company and that the responsibility is . For the culprit, if identified, the complainant must send a notice to the drawer about the company’s guilt, and company directors and officers oversee the company’s affairs. The above decision also tells the defendants that there should be special instructions in the complaint petition that they are responsible for the job.
In this case, there is no doubt that no notice has been given to partner Vijayakumar. He is not the defendant in the case. Here, the partnership is the plaintiff. Admittedly, the aforementioned partner Vijayakumar was not the one who issued the check. No joint petition was filed showing that he was a partner at the time of the testimony.
Said Vijayakumar is responsible and responsible for said company and is not a complainer of personal information. There is no allegation of this in the complaint.
To fasten the liability on the partners of a firm for an offence committed by the firm under Section 138, it must be shown that he was at the helm of the affairs of the firm at the time when the offence was committed. At least, there should be an averment in the complaint to the effect to make him responsible. As he is not the drawer, to attract culpability there should be an averment to that effect in the complaint. Mere mention that a particular person is a partner of the firm or the Company is not sufficient to bring him under the mischief of Section 138 of Negotiable Instruments Act.
In the Supreme Court decision, Anıl Hada Vs. Indian Acrylic Limited [AIR-2000-SC-145] decided that the culprit was the issuer of the check for it to be valid, pursuant to section 138 of the law, but due to the facts considered in section 141 of the law. partners must demonstrate that they are responsible for the business of the company.
In another Supreme Court decision in Monaben Ketanbha Shah and in another case Vs. Gujarat et al. [AIR-2004-SC-4274], referring to the wording in the complaint, that the accused was required to be responsible and liable for conduct in company business that was not beneficial to the company at the time. cannot be proved without the proper consent given in the complaint/accomplice. For this reason:-
“Article 141 does not make all accomplices guilty. If the crime is in the company’s business, responsibility is added to those responsible and liable for the company’s behavior. These people may be people who sleep.
The burden of loading the burden on the defendant belongs to the complainant. In terms of liability, it is not assumed that all partners are aware of the transaction. Unless the complainant makes the necessary explanations in the complaint and accepts this fact, the complainant has to prove that he was not responsible for and was not responsible for the business of the company at the time the crime was committed. There is no need to complain about this. For this reason, the judge decided to release the defendants and found it necessary in the complaint that there was no crime against them.
As emphasized by the Supreme Court, the main duty of the complainant is to make the necessary explanations in the complaint for the accused to be found guilty. If the complaint does not claim that Vijayakumar is responsible for the colleague or business of the company in question, he cannot be held liable for the breach by confirming that the check bounced in his area.
The Supreme Court appealed the decision via SMS. Pharmaceutical Limited Vs. Neeta Bhalla [20050-Crl.LJ- 4140] reiterated that all persons associated with the company are excluded from the terms and that the liability will be based on the relevant period of the crime, not because of their position or position in the company. Responsibility therefore depends more on the role one plays in the company than on position or status.
In this case he is simply said to be a partner and there is no statement or evidence that he is responsible or responsible for the leadership of the temple business. There is no reasonable consent in this case and therefore the trial court has the right to sentence the accused. I have not found any inconsistency or inconsistency that would affect the decision of the first instance court and therefore these criminal appeals will be dismissed.