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2007 Supreme(Mad) 538
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE A.C. ARUMUGAPERUMAL ADITYAN
Hindustan Insecticides Ltd.,
Versus
Kulothunga Chozan Partner, Lakshmi & Co. & Another
Criminal Appeal Nos.983 of 1999, 984 of 1999 and 990 of 1999
Decided On : 09-02-2007
For the Appellant :S. Kalyanaraman, Advocate. For the Respondents:S. Rajababu, Advocate.
The main legal point established in the judgment is the requirement of individual notice to each partner of a partnership firm before filing a private complaint under Section 138 of the Negotiable Instruments Act.
Headnote:
Negotiable Instruments Act - Private Complaints - Section 138 - 138, 141, 142 - The court discussed the necessity of individual notice to each partner of a partnership firm before filing a private complaint under Section 138 of the Negotiable Instruments Act. The court held that the principle established in a previous decision, which required giving notice to each director of a company before filing a complaint, also applied to partners of a partnership firm. The court emphasized the importance of providing an opportunity to the accused to discharge the debt within the stipulated time before proceeding with the complaint. The court also affirmed the applicability of Section 141(2)(b) of the Negotiable Instruments Act to the partnership firm.
Fact of the Case:
The appellant filed three private complaints under Section 138 of the Negotiable Instruments Act for dishonoured cheques drawn by the accused to discharge debts due to the complainant. The accused pleaded not guilty, and the trial judge convicted A1 but acquitted A2 and A3 due to lack of individual notice before filing the complaint.
Finding of the Court:
The court found that the complaint against A2 and A3 was not maintainable due to the absence of individual notice, as required by the legal framework established in a previous decision. The court affirmed the trial judge's decision to dismiss the complaint against A2 and A3.
Issues: The main issue was whether individual notice to each partner of a partnership firm is necessary before filing a private complaint under Section 138 of the Negotiable Instruments Act.
Ratio Decidendi: The court established that the principle requiring notice to each director of a company before filing a complaint also applied to partners of a partnership firm. The court emphasized the importance of providing an opportunity to the accused to discharge the debt within the stipulated time before proceeding with the complaint. The court also affirmed the applicability of Section 141(2)(b) of the Negotiable Instruments Act to the partnership firm.
Final Decision: The court dismissed the appeals and confirmed the judgment of the trial court, which acquitted A2 and A3 in the private complaints.
The complainant in C.C.No.229 of 1994,C.C.No.50 of 1994 and C.C.No.228 of 1994 is the appellant in all the three appeals. In all the above mentioned three private complaints, the complainant and the accused are the one and the same.
2. C.C.No.229 of 1999 was preferred by the complainant for the offence under Section 138 of the Negotiable Instruments Act on the ground that the cheque for Rs.1,50,000/-dated 12. 1994 drawn by A2 on behalf of A1 partnership firm was dishonoured on presentation and that the said cheque was drawn by the accused to discharge the subsisting debts due to the complainant.
3. C.C.No.50 of 1994 was preferred by the complainant in respect of two cheques dated 30.1.1994 and 31. 1994 for a sum of Rs.1,50,000/-each drawn by A2 on behalf of A1 partnership firm. When the cheques were presented into the Bank, they were dishonoured on the ground that "there was no sufficient funds in the account of drawer".
4. C.C.No.228 of 1999 was preferred by the complainant in respect of a dishonoured cheque dated 22. 1994 for a sum of Rs.1,50,000/-drawn by A2 on behalf of A1 partnership firm.
5. All the three complaints were taken on file by the learned Judicial Magistrate and on appearance of the accused on summons copies under Section 207 Cr.P.C. were furnished to the accused when the offence was explained to the accused, they pleaded not guilty.
6.In C.C.NO.229 of 1994, on the side of the complainant P.Ws 1 to 3 were examined and Exs P1 to P10 were marked and on the side of the accused, the second accused has examined himself as D.W.1 and Ex B1 was marked.
b) In C.C.No.50 of 1994, on the side of the complainant, P.Ws 1 to 4 were examined and Exs P1 to P21 were marked. On the side of the accused, the second accused has examined himself as D.W.1 and B1 was marked.
c) In C.C.No.228 of 1994 on the side of the complainant, P.Ws 1 to 4 were examined and Exs P1 to P11 were marked. On the side of accused, the second accused has examined himself as D.W.1 and B1 was marked.
7. C.C.No.229 of 1994:- P.W.1 in his evidence would depose that he is working as Regional Sales Manager in Hindusthan Pesticides Company at Coimbatore and the first accused is running a Company by name Lakshmi and Company at Salem and A2 and A3 are the partners of A1 and that during 1992-1993, the complainant Company had supplied pesticides to A1 Company to the tune of Rs.13,00,000/-. EX P1 is the Ledger for the account maintained for the said transaction (Page Nos.164 and 165) and that as on 33. 1993, a sum of Rs.1,75,358.75 is the amount due from A1 Company to the Complainant Company; Ex P2 is the Ledger for the year 1993-1994(page No.55) for the transaction and as per Ex P2, a sum of Rs.12,93,205,27 was the amount due to the complainant from A1 Company; Ex P3 is the ledger relating to the year 1994-1995(Page No.258) and as per Ex P3, a sum of Rs.12,94,665.27 is the amount due as on 30th July 1995; Ex P4 is the cheque drawn by the second accused on behalf of the first accused Company for a sum of Rs.1,50,000/-dated 12. 1994 in Catholic Syrian Bank in favour of the complainant. When the said cheque was deposited on 7. 1994 in Bank of Baroda, Coimbatore Branch, it was returned with an endorsement stating that there is no sufficient funds to the account of the drawer on 7. 1994; Ex P5 is the pay- in-slip; Ex P6 is the Bankers advice; Ex P7 is the debit note; Ex P8 is the copy of the notice dated 17. 1994 issued by the complainant to the A1 Company. The said notice was returned; Ex P9 is the returned postal cover. Hence the complaint.
7a) P.W.2, Geetha is the Manager of Catholic Syrian Bank, Panaimarraththupatti Branch. She would depose that Ex P4 is the cheque belonging to their bank and the same was dishonoured on 7. 1994 on the ground that there was no sufficient funds in the account of the drawer; Ex P10 is the copy of statement of account for A1 Company and that on 38. 1994, there was only a balance of Rs.2349.85 in the said account in credit.
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