TaxTMI 
TaxTMI 
2017 (10) TMI 31
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....e private complaint filed in above S.T.C.No. in respect of the cheque issued by the A1 Partnership firm. 4. The complainant company is the partnership firm and A.Gopal and A.Ravi are partners of the said firm as per partnership deed dated 8.7.2005. One of the partner, A.Gopal had filed the above private complaint with authorization letter dated 09.10.2009 of another partner. The complainant firm is running the business of manufacturing Garments under the name and style of M/s.Sri Pathy Fashions at the above mentioned address. 5. While so, the second respondent firm is the partnership firm of which the respondents 3 and 4 are the partners carrying on the business of Exports of Garments under the name and style of M/s.Leo Sales Corporation. The respondents 3 & 4 are actively taking part in the day today affairs of the 2nd respondent firm. 6. The 2nd respondent company is the regular customer of the first defendant. As per invoices and statements of account maintained by the first respondent firm/complainant a sum of Rs. 2,87,870/- is due and payable by the second respondent firm to the first respondent. For the above said due, the third respondent as the partner of the secon....
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....ivate complaint has been filed before the Judicial Magistrate No.I, Tirupur for non-payment of the cheque amount on the ground of insufficient funds. 11. The learned counsel for the petitioner has submitted that the orders of the High Court passed in I.P.No.121 of 2009 filed under Presidency Towns Insolvency Act by the Soundappan and another person wherein in the schedule of the property, the cheque in issue in S.T.C.No.2936 of 2009 is also mentioned and the copy of the schedule filed by the petitioner in the above said I.P.No.121 of 2009 before the official assignee has been furnished in the additional typed set of papers. 12. The learned counsel for the petitioner has submitted that on the date of the filing of the private complaint by the first defendant/complainant before the Judicial Magistrate No.I, Tirupur Court on the very same date, this petitioner herein has been adjudged as insolvent and hence, criminal proceedings against the said person cannot be carried on for the non-payment of the amount covered under the cheque, since, he has entitled to protection under the Presidency Towns Insolvency Act. 13. This Court has given in anxious consideration for the submissi....
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.... or the holder in due course of the cheque within 15 days of the receipt of the said notice. 16. The petitioner herein who was arrayed as second accused has been declared as insolvent by the order of the High Court in I.P.No.121 of 1991 and the cheque-in-issue and subject matter of the private complaint is dated 25.07.2005 and 26.08.2009 and the same has been bounced for insufficient offence on 05.09.2009. It remains to be stated that the private complaint has been lodged before the jurisdiction Magistrate Court on 22.10.2009. As observed earlier, there is no prohibition either in the insolvency act or Negotiable instrument act for the aggrieved party to approach the criminal Court to take a penal action against the accused for the offence under Section 138 of Negotiable Instrument Act. 17. Therefore, the protection given under Section 29 and 31 of the Presidency Towns Insolvency Act is only in respect of debtor for a civil decree and he cannot be detained in civil detention and the civil arrest has contemplated under the Civil Procedure Code. The primary concept of the Insolvency Act gives only protection against the civil detention and civil arrest for a person for non-paym....
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....unregistered one. According to the petitioner, he has retired on 01.01.2008 and the same was reduced into writing by way of retirement deed dated 01.01.2008. The said deed of retirement is also un-registered one. 21. This Court has given its anxious consideration for the said contention and also perused the document of deed of retirement. The cheque-in-issue relating dated 25.07.2009 and 26.08.2009. According to the petitioner herein he has retired from the partnership firm on 01.01.2008 itself admittedly,the deed of the partnership was not registered one under the Indian Partnership Act, the retiring partner has to issue a statutory notice under Section 32 sub clause(2) to its notice of the retirement and made, manner and method of issuance a public notice is enshrined under Section 72 of the Indian Partnership Act. 22. The learned petitioner counsel is not in a position to appraise this Court whether the mandatory statutory condition as enshrined under Sub Clause (2) of Section 32 and Section 72 of the Indian partnership Act has been duly complied with to substantiate his claim that his retirement was in accordance with law. 23. Mere raising a plea of retirement from the....