Cheques issued for repayment of a partnership debt establish a legally enforceable liability under Section 138 of the Negotiable Instruments Act, which the accused failed to rebut in court.

COMMON ORDER

The petitioner was convicted by the learned Judicial Magistrate, Paramathi (trial Court) vide judgment dated 14.11.2019 in S.T.C.No.28 of 2018 and sentenced to undergo one month Simple Imprisonment and to pay a fine of Rs.16,72,000/- as compensation to the respondent in default to undergo one month Simple Imprisonment for offence under Section 138 of Negotiable Instruments Act, 1881. Challenging the same, the petitioner preferred an appeal before the learned Principal District & Sessions Judge, Namakkal (lower appellate Court) in Crl.A.No.80 of 2019 and the same was dismissed by judgment dated 22.09.2020 confirming the judgment of trial Court. Aggrieved over the same, Crl.R.C.No.1192 of 2020 is filed.

2.The respondent aggrieved over the judgment of the trial Court in S.T.C.No.28 of 2018 dated 14.11.2019 preferred an appeal before the lower appellate Court in Crl.A.No.83 of 2019 to enhance the sentence to two years and to enhance the compensation to Rs.33,44,000/- i.e., twice the cheque amount. The lower appellate Court by judgment dated 22.09.2020 dismissed the appeal confirming the judgment of the trial Court. Challenging the

3.For the sake of convenience and clarity, the petitioner and the respondent are referred to as Accused and Complainant as per the judgment of the trial Court in S.T.C.No.28 of 2018.

4.Gist of the case is that the complainant and the accused are friends. Out of friendship, the accused requested the complainant to join in her business M/s.Kleenwell Hygiene Pro and M/s.Kleenwell Kleaning Services as Partner. The complainant, her brother entered into partnerships on 22.04.2009 with the accused and her husband. The complainant paid Rs.26,60,000/- on various dates on 24.03.2009, 26.03.2009, 24.04.2009 and 05.05.2009 towards loan and part of partnership share amount. Since the partnership business not materialised, the complainant, her brother and the accused, her husband entered into Dissolution of Partnership Deed on 16.09.2009. At the time of execution of dissolution, the accused agreed to repay the received amount of Rs.26,60,000/- with interest a sum of Rs.28,51,700/- to the complainant. On 16.09.2009, the accused came forward and executed a loan agreement and handed over four post dated cheques [(i)Cheque No.439964 dated 16.12.2009 for Rs.10,60,000/-, (ii)Cheque No.439961 dated 16.12.2009 for Rs.1,19,700/-, (iii)Cheque No.439962 dated 16.03.2010 for Rs.16,00,000/- and (iv)Cheque No.439963 dated 16.03.2010 for Rs.72,000/-]. All four cheques drawn on Punjab National Bank, Commercial Street Branch, Bangalore favouring of the complainant. When the complainant presented two cheques [(i)Cheque No.439962 dated 16.03.2010 for Rs.16,00,000/- and (ii)Cheque No.439963 dated 16.03.2010 for Rs.72,000/-] (Exs.P1 & P2) for encashment in Karur Vysya Bank, Namagiripet, Rasipuram, the cheques returned on 21.04.2010 for the reason “Exceeds Arrangement & Funds Insufficient”. On 19.05.2010, the complainant caused a legal notice (Ex.P6) to the accused and received by her on 20.05.2010. Despite receipt of the notice, the accused neither paid the cheque amount nor sent any reply. Thereafter, following the procedures, the complaint in S.T.C.No.28 of 2018 filed.

5.During trial, on the side of the complainant, the complainant’s brother and the complainant examined as PW1 & PW2 and Exs.P1 to P25 marked. On the side of the defence, DW1 to DW3 examined and Exs.D1 to D9 marked. On conclusion of trial, the trial Court convicted the accused which was confirmed by the lower appellate Court.

6.Learned counsel for the accused subm