Crl.O.P.No.11347 of 2019

and

Crl.M.P.No.5790 of 2019

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Reserved on :28.10.2022

Pronounced on

:......11.2022

Coram:

THE HONOURABLE DR. JUSTICE G.JAYACHANDRAN

Crl.O.P.No.11347 of 2019

and

Crl.M.P.No.5790 of 2019

P.Dinesh Kumar

.. Petitioner/Accused No.2

/versus/

M/s Indian Herbs Specialities Pvt.ltd.,

Rep.by its Regional Manager,

Mr.Krishnamoorthy,

S/o Chinnagounder,

Vasanthapuram Post,

Namakkal Taluk and District.

.. 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.129 of 2017 pending before the

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

For Petitioner

:Mr.R.Anbukarasu

For Respondent

:No appearance

-----

Page No.1/12

https://www.mhc.tn.gov.in/judis

Crl.O.P.No.11347 of 2019

and

Crl.M.P.No.5790 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

07.02.2017 drawn in favour of the complainant for Rs.3,57,500/- 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 “M.s Indian Herbs Specialities Private Limited” for

supplying Herbal Health Products to the Firm. The first accused Partnership

Firm “M/s Sri Lakshmi Feeds”, represented by its Managing Partner, the

second accused (the petitioner herein) used to purchase of Herbal Health

Products from the complainant. The subject cheque was issued to discharge

the due payable towards the cost of herbal health products sold. On

presentation of the cheque dated 07.02.2017, it was returned with memo

Page No.2/12

https://www.mhc.tn.gov.in/judis

Crl.O.P.No.11347 of 2019

and

Crl.M.P.No.5790 of 2019

dated 10.04.2017 as “Account Blocked”. Statutory Notice to the accused

was sent through the Lawyer on 18/04/2017. The said notice returned with

an endorsement “Intimation given, not claimed”. The complaint therefore

filed under Section 138 of the Negotiable Instruments Act, 1881 on

17/05/2017 with explaining the reason for not filing the complaint within 30

days from the date of cause of action. The complaint was taken on file by the

Judicial Magistrate No.1, Namakkal in C.C.No.129/2017 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.

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

Page No.3/12

https://www.mhc.tn.gov.in/judis

Crl.O.P.No.11347 of 2019

and

Crl.M.P.No.5790 of 2019

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 in

another case, 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 me