The liability of partners in a partnership firm and the legal enforceability of a time-barred debt under Section 138 of the Negotiable Instruments Act can only be determined after a detailed trial.

JUDGMENT

(Prayer: Criminal Original Petition is filed under Section 482 of Cr.P.C, to call for the records pertaining to the proceedings in C.C.No. 119 of 2021, on the file of the Judicial Magistrate No.II, Kovilpatti and to quash the same as against the petitioners.)

This petition is filed to quash the proceedings in C.C.No. 119 of 2021, on the file of the Judicial Magistrate No.II, Kovilpatti.

2. The allegation against the petitioners is that the petitioners borrowed a sum of Rs.16,00,000/- on 14.05.2019 and he promised to repay the same within a period of six months. After repeated demands, the second accused issued a post dated cheque drawn on Tamilnadu Merchantile Bank, Palayamkottai Branch, on 21.10.2020, in favour of the complainant and he directed the complainant to present the cheque. The complainant presented the cheque on 23.11.2020, through State Bank of India, Kovilpatti Branch and the cheque was dishonored with an endorsement "Account Closed". The accused Nos.2 to 4 are jointly or severally liable for the dishonor of the cheque and hence a legal notice was sent. Later a private complaint was registered.

3. On the side of the petitioners, it is stated that the first petitioner is a partnership Firm carrying on business in purchase of gold and silver under the name and style of “M/s Shree Jewel Paarc”. A2 to A4 are the partners of the Firm. The petitioners are A2 and A4 and that they are not the drawers of the cheque and that they are not the account holders, or signatories of the disputed cheque, the legal requirements under Section 141 of Negotiable Instruments Act were not fulfilled that cannot be an offence transaction against the partners, unless and until they have a Role in the affairs of the partnership his firm or having the control over the business of the Firm. Simply because, they are the partners, they cannot be made liable under Section 138 of Negotiable Instruments Act.

4. On the side of the petitioners, it is further sated that to constitute an offence under Section 138 of Negotiable Instruments Act, there should be a Legal enforceable Debt. The amount was borrowed on 09.06.2014, the complainant approached the Court, after seven years and the claim was time barred. The first petitioner is aged about 82 years, the second petitioner is aged about 53 years and only with a malafide intention, they were impleaded in the case and prayed the case to be quashed.

5. On the side of the petitioners, it is further sated that only A3 was the signatory in the cheque. The alleged loan was time barred, Section 138 of the Negotiable Instruments Act is not maintainable against the petitioners, who were not the signatories and who were not taking acting participation in the transaction.

6. A Judgment of this Court in Crl.O.P.(MD)No.27970 of 2018, dated 22.01.2019 is cited, wherein, it is stated as follows:-

“3. It is seen from the allegations made in the complaint that this petitioner was only a coapplicant for the loan and this petitioner has not signed the cheque and it was only A1, who had signed the cheque. Therefore, this petitioner should not have been made as an accused person.

4. The facts of the case is squarely covered by the judgment in R.Priyadharshini V. LIC Housing Finance Limited, reported in 2006 (1) LW (Crl.) 58 and Aparna A.Shah Vs. Sheth Developers Private Limited, reported in (2013) 8 Supreme Court Cases 71. In view of the above, the proceedings as against this petitioner is liable to be quashed.”

7. On the side of the petitioners, it is sated that a time barred debt cannot be the basis for filing a case under section 138 of the Negotiable Instruments Act and that a time barred debt is not legally enforceable.

8. A Judgment of this Court reported in 2020-3-MWN (Cr.)- DCC-101 Mad) (N.Mohan V. P.Suresh) is cited, wherein, it is stated as follows:-

“9. This Court is of the considered view that debt that is sought to be claimed from the petitioner by the respon