M/s. Fridgehouse and Others vs G. Jaganathan <BR>G. Jaganathan Vs M/s. Fridgehouse and Others

N. Kirubakaran, J.—The petitioners 2 to 8 in Crl. O.P. No. 6033/12, who are the partners of the first petitioner firm, challenged the 138

proceedings initiated by the respondent herein/petitioner in Crl. O.P. No. 29237/12. The case of the respondent herein is that he was a partner

along with petitioners 2 to 8 in the first petitioner/firm and doing business. Since the respondent expressed his intention to get relieved from the

partnership business, he was relieved from business by virtue of reconstitution deed dated 1st April, 2010. Pursuant to the same, he was paid his

share from the assets of A-1/firm. In this regard, the petitioners issued the subject cheque No. 376511 dated 1st Oct., 2011 for a sum of Rs.

1,20,00,000/= (Rupees One Crore Twenty Lakhs only) towards his share in the A-1/firm. The said cheque was presented to the bank for

collection on 18th Oct., 2011 and the same was dishonoured on 20th Oct., 2011. After issuing notice, the impugned complaint was filed before

the trial court. Challenging the same, the accused are before this Court. Mr. Kalyanasundaram, learned counsel for the petitioners submits that the

cheque No. 376577 was stolen by the respondent and, thereafter, it was presented for encashment. Moreover, he points out that with regards to

the averments made in the complaint, there is no proper averment in the body of the complaint implicating the petitioners 2 to 8 and, that the

petitioners 2 to 8 are only sleeping partners of the firm and they are not actively involved in the affairs of the firm. He specifically contends that no

averment specifying the role of each of the partners have been mentioned in the body of the complaint. Learned counsel for the petitioners relies

upon the judgment of the Hon''ble Supreme Court in S.M.S. Pharmaceuticals Ltd. Vs. Neeta Bhalla and Another, to stress the point that the

complaint should have necessary averment that at the time of commission of the offence, the accused persons were in-charge of the affairs of the

firm. He also relies upon another judgment of the Hon''ble Apex Court in National Small Industries Corp. Ltd. Vs. Harmeet Singh Paintal and

Another, .

With regard to the issuance of summons to the accused, the Magistrate has to apply his mind to the facts of the case and the law and after

carefully scrutinizing the evidence brought before him and he must issue summons to the accused is the dictum laid down by the Hon''ble Supreme

Court in Pepsi Foods Ltd. and Another Vs. Special Judicial Magistrate and Others, . Relying upon the above judgments, learned counsel for the

petitioners submits that the complaint has to be quashed.

On the other hand, Ms. Renuka, learned counsel appearing for the respondent/complainant submits that only towards settlement of amount for

having been relieved from the partnership firm, the respondent was given the said cheque and all necessary averments have been made in the

complaint. Therefore, she seeks for dismissal of the original petition.

Heard the learned counsel on either side and perused the materials available on record.

A perusal of the complaint given u/s 138 of the Negotiable Instruments Act, by the respondent would show that he was a partner along with the

petitioners 2 to 8 in the 1st petitioner/firm and he was relieved as a partner from the 1st petitioner/firm as per the reconstitution deed. The

retirement of the respondent is not denied by the petitioners. It is not denied by the petitioners that the cheque was not signed by them. They only

contend that the cheque was stolen. In the notice dated 26th Nov., 2011, which was issued in reply to the notice given by the respondent, it reads

as follows:-For the purpose of business Mr. Giridharan used to sign blank cheque leaves and leave the same in the office table for enabling the

accountant to transact business in the absence of Mr. Giridharan. The blank signed cheque leaves were kept in the table and left unlocked. The

employees and staff of the office are so trustworthy and hence there was no room to suspect any foul play in leaving blank signed cheque leaves in

the office.

Though it is contended by the learned counsel for the petitioners that the Managing Partner had left the signed cheques on the table and that it

was stolen, it is a factual issue and should be proved by proper evidence.

With regard to necessary averments implicating the role of the petitioners are concerned, averments are available in the body of the complaint.

In paragraphs 4, 5, 6, 7 and 8, necessary averments are there. In para-4 it has been specifically stated that A-2 to A-8 are active partners and

attending to the day-to-day affairs of A-1/firm. In para-4 it has been specifically stated that A-2 with the connivance of A-3 to A-8 issued the

account payee cheque of A-1 to the respondent. It is also specifically stated in the same para that A-3 to A-8 also insisted the complainant to

receive the said cheque as part payment and promised to pay the balance amount. Moreover, it is also stated therein A-2 to A-8 promised that the

cheque will be honoured when it is presented for collection.

In view of the aforesaid averments in the complaint, it cannot be said that there is no necessary averments. In view of the same, the dictum laid

down in SMS Pharmaceutical''s case and National Small Industries Corporation Ltd.''s case (supra) are satisfied. Even then the petitioners have

got a right to prove their case before the trial court that they are not active partners, who are not involved in the day-to-day affairs of the company.

Moreover, they are at liberty, not only to cross-examine the respondent, but also to adduce contra evidence also.

As already observed, a reading of the complaint, prima facie, would reveal that the cheque was issued for payment of/discharge of enforceable

debt and the conditions prescribed u/s 141 of the Negotiable Instruments Act is fulfilled. At the threshold itself, this Court cannot look into all those

averments and conduct a roving enquiry with regard to the allegations and counter allegations made by the parties and the same has to be tested

only before the trial court.

In view of the discussion made above, Crl. O.P. No. 6033/2012 fails and the same is dismissed. Consequently, M.P. Nos. 1 and 2 of 2012

are also dismissed.

Crl. O.P. No. 29237/2012 has been filed by the complainant for speedy disposal of the case. This matter is connected to Crl. O.P. No.

6033/2012, which has been dismissed above, for reasons given aforesaid. Considering the fact that the matter is pending since 2012, and proof

affidavit has been filed on 21st Jan., 2013, the trial court is directed to expedite the trial of the case and complete the same within a period of six

months from the date of receipt of a copy of this order. Consequently, M.P. No. 1 of 2013 is closed. However, the observations made by this

Court in the above petitions is only for the purpose of disposal of these petitions and the trial court shall try the case uninfluenced by any

observations made by this court herein.