The liability of a firm and its partners under Section 138 of the Negotiable Instruments Act.

The Order of the Court is as follows:

Both these revisions are being disposed of by a common order, since the parties as well as the issues before this Court are same.

2. The facts in Cri. R.C. No. 418 of 1997 are these,

The petitioner/accused issued a cheque for a sum of Rs. 5, 000/- dated 25-7-92 to one Selvam. He made over the same to one Annadurai. Thereafter, the accused received the cheque from the said Annadurai and handed over the same to the complaint/respondent herein towards discharge of his liability on having purchased silk from him. The cheque was presented and the same was dishonoured. Again on the instructions of the petitioner/accused, the complainant presented the cheque after three months. This time also the cheque was dishonoured, as funds were insufficient. Since the amount was not paid even on notice, a complaint was filed under section 138 of the Negotiable Instruments Act. After trial, the trial Court convicted the petitioner and sentenced him to undergo R.I. for 2 months and to pay a fine of Rs. 2, 000/-, in default to undergo S.I. for 3 months. As against this judgment, the petitioner filed an appeal and the same was dismissed. Hence, the Revision.

3. The facts in Crl.R.C. No. 431 of 1997 are as follows:

The complainant was doing silk business. The accused/petitioner purchased silk from the respondent on credit basis. To settle the amount, the accused issued a cheque for Rs. 11, 000/- to the respondent on 5-7-92. When the cheque was presented, the same was dishonoured. Again, it was presented on the instructions of the accused. However, the same was also dishonoured. Therefore, on 11-1-93, he issued a notice. Even then, there was no payment. Hence, a complaint was filed under Section 138 of the Negotiable Instruments Act. After trial, the trial Court convicted the petitioner and sentenced him to undergo 2 months' R.I. and to pay a fine of Rs. 3, 000/- in default to undergo simple imprisonment for 3 month. This conviction was confirmed in the appeal. Hence, the Revision.

4. The learned Counsel appearing for the petitioner in both the revisions would press into service the following contentions.

(i) on receipt of the memo from the bank intimating the insufficiency of funds, the complainant has to issue notice within 15 days. In the instant case, it was not established that such a statutory notice was sent within 35 days.

(ii) The cheques were issued by the petitioner as a partner on behalf of 'V.S. Silk Centre'. In the instant case, the firm was not included as an accused. Therefore, the complaint is invalid.

5. I have carefully considered the submissions made by the counsel for the petitioner and I have made a thorough scrutiny of the records and judgments of the Courts below,

6. As far as Crl.R.C. No. 418/97 is concerned, regarding the first point that failure in issuing notice within 15 days from the date of intimation, it was held by both the Courts below that Ext. P. 6, the return memo was issued on 26-12-92 and that P.W. 3 the Bank Manager stated that the Memo would be sent after 10 days and as such, the notice sent on 11-1-93 was within the period of limitation. The relevant observation of the lower appellate Court is as follows :-

"Admittedly, Ex. P-6 was issued on 26-12-92. The Manager of Karur Vysya Bank, Arani was examined as P.W. 3. He would say in his evidence that the Memorandum will be sent after 10 days. From his evidence, it is very clear that the Ex. P-6 was received by the respondent after 10 days from 26-12-92. After receiving Ex. P-6, Ex. P-7 notice dated 11-1-95 was issued to the accused. Ex. P-7 notice was issued within 15 days of return of cheque. Therefore, the respondent has also observed due formalities in this case."

7. In Cri. R.C. No. 431/97 also, this point has been dealt with by both the Courts below and it was held that the return memo was received on 1-1-93 and the notice was sent on 11-1-93 and so it is well within the period of limitation. The relevant observation of