TaxTMI 
TaxTMI 
TaxTMI 
2003 (1) TMI 759
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....n behalf of the above said firm, from the complainant on various dates and in order to discharge the above said debt, the second accused, on behalf of the first accused and other accused, had issued a cheque drawn on South Indian Bank Ltd. for Rs.10 lakhs dated 01.11.2000 and the said cheque was signed by the second accused as Managing Partner of the above said firm. The said cheque was presented in the State Bank of India, Namakkal on 29.12.2000 but the same as returned on 03.01.2001, with endorsement, "insufficiency of funds". The complainant received the intimation on 12.01.2001 and on 15.01.2001, he issued a notice, as contemplated under the Negotiable Instruments Act to the accused and it is said that the accused 3, 4, 5, 6 and 10 have received the notice on various dates i.e. on 20.01.2001, 18.01.2001, 18.01.2001 and 24.01.2001, while accused 1, 2, 7, 8, 9 and 11 have refused to receive the notice, even though intimation was given to them. It is further submitted that a reply has been issued on behalf of the accused, containing false averments. Since money has not been paid within the mandatory period, the present complaint has been filed against the accused. c) A....
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....t has unnecessarily roped in, the wives of accused nos.2, 4, 6 and 8 who have nothing to do with the running of the firm. (Though the reply notice contains other particulars they may not be very relevant for the purpose of deciding this case). The complaint has been filed only on the receipt of this reply notice and the complaint specifically states that A-2 to A-11 are in-charge of the business and administration of the firm, according to the partnership deed and it is to be noted that the complainant has failed to produce any material, much less the partnership deed which would disclose as to who really the partners are and who is in-charge of the administration and conduct of the business. On the other hand, the petitioners herein have produced Form-A certificate, from the office of the Registrar of Firms, which according to them is a public document and the court is entitled to peruse the same and that it is seen that these petitioners did not play any part in the administration of the mills and as such, they cannot be saddled with any criminal liability. Since this document produced by the petitioners herein is a public document, which would throw light on the actual partners,....
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....rs of the said firm. They are responsible for the commission and omission of the above said firm. Apart from this there is absolutely no other allegation. The complainant has filed the complaint only on receipt of the reply notice and the complaint specifically states that A-2 to A-11 are partners and are in-charge of the day to day affairs of the company as per the partnership. 12. In normal circumstances, I feel that it would suffice to launch prosecution under section 138 of the Act. But here is a case when immediately after the cheque has been dishonoured, a notice has been issued to the petitioners. However, a copy of the same has not been placed along with the complaint, though unserved covers to the other accused have been kept. 13. Be that as it may, the petitioners have replied the same and have clearly come out with a version that they are not partners. In addition, they have clearly stated that it is only A-2 4, 6, 8, 11 and one Periyasami are partners. Though the notice speaks of other details, about the difference of opinion between the partners, it may not be necessary for me to dwell upon all these particulars. Suffice to say that as early as 8.2.2001, the petition....
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....opinion on that issue. I place reliance on the document namely, partnership deed in the present case only for my personal satisfaction and to lend assurance after coming to a conclusion that the prosecution had no other materials to support their case that they are partners, and since the complainant has averred that the petitioners are partners as per the partnership deed. 17. Yet another decision of the Apex Court which supports the claim of the petitioners is the decision made in G. Sagar Suri and another Vs. State of UP and Others wherein Their Lordships have held that when the complainant launched a complaint with mala fide motive to rope in all members of the family for non-payment of loan amount without regard to their role or participation, such complaint is an abuse of process of law and the proceedings are liable to be quashed. 18. Hence, I see that the prosecution against the petitioners cannot come under the category of Section 141(1) of the Negotiable Instruments Act. 19. The next question that arises for consideration is what is the position if they are not partners. If the person who is made an accused is not partner, section 141(2) of Negotiable Instruments Act, ....