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2024 Supreme(Mad) 2469
IN THE HIGH COURT OF JUDICATURE AT MADRAS
G. JAYACHANDRAN, J.
ARDYS Foods and Hospitality Services LLP, Rep.by its Partner Ashmitha -Petitioner
Versus
M/s. Gem Edible Oil Private Limited – Respondent
Crl.O.P.No.5105 of 2024 and Crl.M.P.No.3712 of 2024
Decided on : 03-07-2024
Advocate Appeared:
For the Petitioner: Mr.T.Balaji
For the Respondent: Mr.K.Mukund Rao
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.
Headnote:(A) Negotiable Instruments Act - Section 138 - Quashment of a private complaint under Section 138 due to lack of representation of the accused, a registered LLP, as the complaint was filed against the LLP without specifying a human representative responsible for the firm's liabilities - Court finds that personal liability of partners must be established in the complaint, which it failed to do (Paras 1 - 5).
(B) Limitation - Amendments to the complaint not permitted as they would contravene statutory limitations for filing under the Act (Para 6).
Facts of the case:
The complaint arose from a bounced cheque issued by the accused LLP for goods purchased. The petitioner argued that he, as a partner, could not be held liable without proper representation in the complaint.
Findings of Court:
The court determined that the LLP was not properly represented in the complaint, thus requiring dismissal.
Issues: Whether the complaint sufficiently identified a responsible human representative for the LLP and if amendments could be made outside the limitation period.
Ratio Decidendi: The court held that a complaint must designate a human representative responsible for the corporate entity's liabilities, reaffirming the necessity of legal representation for juristic bodies.
Result: Complaint quashed.
| Table of Content |
|---|
| 1. liability of partners in an llp (Para 1 , 2) |
| 2. insufficient funds leading to complaint (Para 3) |
| 3. complaint lacks necessary representation details (Para 4 , 5) |
| 4. amendment request barred by limitation (Para 6) |
| 5. resolution of the petition (Para 7) |
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, the learned counsel appearing for the respondent submitted that the accused firm had purchased goods worth Rs.65,000/- and gave the subject cheque, but on presentation, the same was returned for insufficient fund and hence the complaint. The statutory legal notice issued to the firm was received by the firm, but had not replied. Having failed to reply to the statutory notice, the petitioner cannot take advantage of his own fault.
4. This Court on reading of the complaint finds that the accused is described as under:
“The accused is ARDYS Foods and Hospitality Services LLP, at No.25, Lakshmipuram 2nd Street, Coimbatore-641004.”
Paragraph 2 of the complaint reads as below:-
“2. The accused running a Limited Liability Company and the partners are personally liable for discharge of all liabilities of the company. The accused had authorized the complainant to fill in the date and drawee details while presenting the cheque, based on the accused authorization the complainant filled up the details of the complainant in the cheque and presented the same.”
5. The complainant having said that the partners are personally liable to discharge the liability of the complainant, it should have atleast mentioned who are the partners of the company. Having failed to mention the name of the partners and also filed a complaint without mentioning any human body to represents the LLP, the complaint has to fail for being lodged against the jurisdic body without any human body to represent the juristic body.
6. The learned counsel appearing for the respondent made a request that he may be permitted to amend the complaint since the details of the partners were made available only now. This Court is of the view that, that amendment cannot be permitted at this point of time, since the statutory requirement for initiate the complaint by this time is barred by limitation in this case.
7. In view of the above, this Criminal Original Petition is disposed of. Consequently, the connected Criminal Miscellaneous Petition is also closed.
