TaxTMI 
TaxTMI 
2023 (2) TMI 1445
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....hat M/s K.K. Tractors, is a partnership concern and Vijay Kapoor and Damiyanti Kapoor are its partners. It was stated that M/s K.K. Tractors was appointed as dealer by the respondent-complainant Company for the sale/service of the product of the company and the accused have been managing the affairs of the firm and looking after the day to day business of the firm and were also responsible to the firm. It is stated that the accused were appointed as dealers by the respondent-complainant company for selling its products in the territory of Tehsil Patiala and Dudhan Sadhan (Punjab). It is the pleaded case of respondent-complainant Company that the accused had agreed to issue security cheques for recovering the price of goods supplied to the petitioners-accused on credit for enabling the respondent-complainant (company) to fill-in the security cheques bearing Nos. 073922 and 073923, both drawn on State Bank of Patiala, Patiala in favour of Mahindra and Mahindra Limited. It is stated that the petitioners-accused have been maintaining an open and current account with the respondent-complainant and on the request of the petitioners-accused, the respondent-complainant had been selling its....
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....nexures P-20 to P-28, have been placed on record. On the other hand, learned counsel for the respondent handed over a reply along with Annexures R-1 to R-9 on behalf of respondent, in the Court today, which is taken on record, subject to all just exceptions. A copy, thereof, has been supplied to learned counsel for the petitioners. Learned counsel for the petitioners has submitted that the prosecution against petitioner No.3 namely, Damiyanti Kapoor, is not maintainable as neither she is a signatory to the cheque nor she is responsible for the day to day functioning of the business. It is submitted that petitioner No.3 is a house wife and have no relation, whatsoever, with the business of the partnership firm i.e. petitioner No.1, which is solely under the control of petitioner No.2. Accordingly, it is submitted that the complaint against petitioner No.3 herein is an abuse of process of law. Learned counsel for the petitioners has further submitted that the cheques in question, were issued in the year 2013 at the request of Rajmeet Singh, DGM Marketing, Mr. Sumit Bansal, Retail Manager and T.P.S. Walia, Area Manager for the purpose of opening up of credit facility under Ch....
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....nexures i.e. Annexures P-22 to P-28. Annexure P-23 appears to be Press release/news item; Annexure P-24 are emails and Annexure P-26 being an inquiry report dated 22.09.2021, stated to have been made on the complaint dated 06.11.2020 (Annexure P-19) submitted by the petitioners. Per contra, learned counsel for the respondent has referred to the deed of partnership (Annexure R-1), which suggests that Vijay Kapoor and Damyanti Kapoor are partners to the extent of 50% each and they also draw remuneration from the said firm. In this regard, Clauses 6 and 7 of the partnership deed read as under :- "6. That both the parties, being working partners and attending to the business, shall be entitled to remuneration, each @ Rs.15,000/- p.m. 7. That the profits and losses of the business shall be shared by the parties, as under :- Name of the party Share of profit % Share of loss % Shri Vijay Kapoor 50% 50% Smt. Damyanti Kapoor 50% 50% " In respect of the submission of learned counsel for the petitioners that the cheques were issued for a different purpose and the same have been misused by the respondent-complainant/Company, learned counsel fo....
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....business of the firm and are responsible to the firm." Thus, the necessary pleadings in terms of Section 141 of the Negotiable Instruments Act, have been made by the respondent complainant and the issue whether petitioner No.3 is liable under Section 138 of the Negotiable Instruments Act, or not, shall be a subject matter of trial. The initial burden by way of averment in the complaint has been made by the respondent. I have considered the contention of learned counsel for the petitioner that cheques in question were issued for a different purpose and were misused by the respondent, however, in my considered view, this contention would be again a matter of trial as the petitioners herein have taken a stand, which is different from the stand taken by the respondent complaint in its complaint under Section 138 of the Negotiable Instruments Act. The third contention of learned counsel for the petitioners is that the cheques in question, are invalid cheques as the State Bank of Patiala stood merged/acquired by the State Bank of India, way back in the year 2017 and accordingly, the cheques in question, should have been returned by the concerned bank; whereas, the same were wron....