TaxTMI 
TaxTMI 
TaxTMI 
2021 (10) TMI 759
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....agistrate at Avinashi and registered as C.C. No. 29/2017. 6. The complaint with respect to Crl. O.P. No. 27966/2015 had originally been taken cognizance as C.C. No. 304/2015 by the learned Judicial Magistrate, Fast Track Court at Magisterial Level at Tiruppur and subsequently, had been transferred to the Court of Judicial Magistrate, Avinashi, and renumbered as C.C. No. 28/2017. 7. The respondent in both the cases/complainant is Sri Balaji Yarns, represented by its Partners. They had, transactions with A1, viz., SRS Knitting at Tiruppur, which is a Partnership Firm. The partners had been shown as A2 and A3. They are spouses. 8. In view of the business transactions, two cheques had been issued towards an existing liability. Both the cheques were dated 08.12.2008. The first cheque bore No. 640583 and the second cheque bore No. 090309. They were both drawn on the South Indian Bank Limited, Main Branch, Tiruppur. The first cheque was for a sum of Rs. 2,62,850/- and the second cheque was for a sum of Rs. 3,73,200/-. 9. Crl. OP. No. 27705/2015 is with respect to cheque amount Rs. 2,62,850/- and Crl. OP. No. 27966/2015 is with respect to cheque amount Rs. 3,73,200/-. Both the cheques ....
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.... Krishna Vs. Dasari Deepthi and Others]. 15. In all the four judgments, the point which had been stressed by the Hon'ble Supreme Court of India is that there should be averments that the Director who is arrayed as an accused, should be shown to be having control over the affairs of the Company and should be in-charge of the day-to-day affairs of the Company. It had been stated that if averments in the complaint do not cross that particular threshold or test, then the Director can seek to quash the complaint as against him/her. 16. In the instant case also, it is stated by the learned counsel for the petitioner that the averments are not sufficient whereas, the learned counsel for the respondent insist that the averments are sufficient. 17. Now, let me examine the provisions under Section 138 of the Negotiable Instruments Act, 1881. 18. Section 138 of the NI Act, reads thus:- 138. Dishonour of cheque for insufficiency, etc., of funds in the account.-- Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liabi....
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....rnment or a financial corporation owned or controlled by the Central Government or the State Government, as the case may be, he shall not be liable for prosecution under this Chapter. (2) Notwithstanding anything contained in sub-section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation.--For the purposes of this section -- (a) "company" means anybody corporate and includes a firm or other association of individuals; and (b) "director", in relation to a firm, means a partner in the firm." 21. I am more deeply concerned with Explanations to Section 141 of NI Act, 1881. 22. There is one specific distinction while examining the position of a Director and examining the position of a Partner of a Partnership Firm. 23. A Director receives a remuneration for services rendered for....
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....rson can be nominated as a Director and even be nominated as a Professional Director. There are also occasions when the Government nominates, in some cases, a person to be appointed as a Director for a Company. Their interest is with respect to the remuneration to be received by them from the Company. 27. The interest of a Partner is different. The interest of partners swing according to the manner in which the Partnership Firm functions. If there is a profit, the partner gains. If there is a loss, a partner suffers a loss. At that particular point of time, there cannot be any distinction between the roles of two evenly placed partners. 28. In the present case, both A2 and A3 are partners of A1/Firm. When a cheque is issued for a particular transaction on behalf of the Partnership Firm, then both have a co-existing liability with respect to ensuring that the cheque is honoured. If the cheque is dishonoured and the prosecution is launched, then both have a co-existing liability to face such prosecution unless the Partnership Deed specifically excludes a particular partner or includes a partner as a sleeping partner or a minor partner only for the benefit of the Partnership Firm. I....