Crl.O.P.No.11328 of 2019

and

Crl.M.P.No.5770 of 2019

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Reserved on :28.10.2022

Pronounced on

:03.11.2022

Coram:

THE HONOURABLE DR. JUSTICE G.JAYACHANDRAN

Crl.O.P.No.11328 of 2019

and

Crl.M.P.No.5770 of 2019

P.Dinesh Kumar

.. Petitioner/Accused No.2

/versus/

T.Cibi Chakaravarthy

.. Respondent/Complainant

Prayer:

Criminal Original Petition has been filed under Section 482 of

Cr.P.C., to call for the records in C.C.No.130 of 2018 pending before the

Judicial Magistrate No.1, Namakkal, Namakkal District and quash the same.

For Petitioner

:Mr.R.Anbukarasu

For Respondent

:No appearance

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Crl.O.P.No.11328 of 2019

and

Crl.M.P.No.5770 of 2019

O R D E R

This Criminal Original Petition is filed by the second accused, who

faces criminal prosecution for the offence under Section 138 of the

Negotiable Instruments Act, 1881 in connection with cheque dated

10/03/2017 drawn in favour of the complainant for Rs.11,14,251/- signed

and issued on behalf of the first accused as Managing Partner of the

Partnership Firm by name “ M/s Sri Lakshmi Feeds”.

2.

The case of the complainant is that, he is running a business in

the name and style of “TCS Trade Links” dealing with raw materials for

poultry feed. The first accused Partnership Firm “M/s Sri Lakshmi Feeds”,

represented by its Managing Partner, the second accused (the petitioner

herein) used to purchase raw materials like soya-doc DC oiled rice bran and

rice bran oil on credit basis from the complainant. The subject cheque was

issued to discharge the due payable towards the cost of raw materials for

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Crl.O.P.No.11328 of 2019

and

Crl.M.P.No.5770 of 2019

poultry feed sold. On presentation of the cheque dated 10/03/2017, it was

returned with memo dated 06/04/2017 as “Account Blocked”. Statutory

Notice to the accused was sent through the Lawyer on 05/05/2017. The said

notice returned on 08/05/2017 as 'unserved'. The complaint therefore filed

under Section 138 of the Negotiable Instruments Act, 1881 on 08/09/2017

with explaining the reason for not filing the complaint within 30 days from

the date of cause of action, which is 23/05/2017. The complaint was taken

on file by the Judicial Magistrate No.1, Namakkal in C.C.No.130/2018 and

summons issued to the accused persons.

3.

On receipt of the summons, the petition to quash is filed on the

ground that, the Partnership Firm “M/s Sri Lakshmi Feeds” was

incorporated consisting of Balasubramaniam, Babu Saravanan,

S.P.Kumaravel, K.Ramesh, Kanagaraj and P.Dineshkumar. The firm was

registered in No:935/2014 before the Registrar of Firms on 01/11/2014. One

Mr.C.Periyasamy, was inducted into the Partnership Firm on 31/08/2015.

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Crl.O.P.No.11328 of 2019

and

Crl.M.P.No.5770 of 2019

Subsequently, on 01/09/2015, except Periyasamy and his son Dinesh Kumar

rest of the Partners retired from the Firm. Till 11/03/2017 the Firm was run

by its partners Periyasamy and Dinesh Kumar. After that date, the firm was

reconstituted, Savitha and her husband Chetan kumar were induced as

partners, Periyasamy and Dinesh kumar were retired. The creditors of the

firm were informed about the retirement deed dated 15/03/2017 and the

reconstitution deed dated 16/03/2017, wherein it has been agreed by the

parties that all the assets and liabilities of the firm henceforth be taken over

by the new partners namely, Savitha and Chetan kumar. The complainant

Cibi Chakravarthy, who is one of the witnesses to the deeds of retirement

and reconstitution know about this fact.

4.

As per the Form-A submitted to the Registrar of Firms on

23/03/2017, the date of reconstitution is mentioned as 15/03/2017.

Therefore, the erstwhile Partners of the firm Mr.Periyasamy and his son

Dinesh kumar have no control over the Firm “M/