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IN THE HIGH COURT OF JUDICATURE AT MADRAS
G. JAYACHANDRAN
ARDYS Foods and Hospitality Services LLP, Rep.by its Partner Ashmitha – Appellant
Versus
Gem Edible Oil Private Limited – Respondent
ORDER :
G. JAYACHANDRAN, J.
1.This Criminal Original Petition is filed to quash a private complaint initiated under Section 138 of Negotiable Instruments Act. Challenging before this Court on the short point that the accused, a registered LLP been prosecuted without any human body to represent it.
2. According to the petitioner, the accused LLP is represented by its partners and it is a duly registered concern. While so, alleging that the cheque issued by the LLP bounced without sufficient fund, the complaint has been filed against the LLP as sole accused. The petitioner being the partner of the company, he is now forced to defend the LLP in a case where the statutory notice informing the return of cheque not been issued to him either as representative of LLP or in his individual capacity. To explain the circumstances under which the cheque was issued or to pay the cheque amount within a period of 15 days from the receipt of the notice. Having deprived of that opportunity, the petitioner as a partner of the LLP cannot be forced to face the trial on behalf of the LLP without disclosing in the complaint how the partners are responsible for discharging the liability of LLP.
3. Per contra,
A complaint under Section 138 against a registered LLP must identify a human representative responsible for the firm’s liabilities; failure to do so renders the complaint invalid.
Liability under Section 138 of the Negotiable Instruments Act cannot be established against a partner without including the partnership firm as an accused.
A complaint under Section 138 of the Negotiable Instruments Act is not maintainable if the Partnership Firm, which issued the cheques, is not made an accused.
There is a presumption under Section 139 of the N.I.Act that there exists a legally enforceable debt or liability.
The court emphasized that the specific allegations and knowledge of the accused are crucial in determining liability under Section 138 of the Negotiable Instrument Act.
Negotiable instruments – Quash of criminal proceedings against one of the Director - petitioner was only a partner of the firm which has issued the cheque and she was not responsible for the conduct ....
A partner is liable under S.138 of the NI Act only if proven responsible for the firm's conduct, as clarified in prior judgments.
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