R. Muthuraman vs Sree Sakthi Tex.

A. Ramamurthi, J.—The revision petitioner is the accused in C. C. No. 316 of 1998 on the file of the Judicial Magistrate-I, Tirupur, and

aggrieved against the order passed in C. M. P. No. 4110 of 1998, dated March 24, 1999, the present revision is filed.

The case in brief for the disposal of the revision is as follows :

The petitioner is the fourth accused in C. C. No. 316 of 1998. The respondent filed an application u/s 138 of the Negotiable Instruments Act,

1881, against seven persons. The petitioner filed an application u/s 245 of the Code of Criminal Procedure, for discharge. The first accused issued

a cheque for and on behalf of the seventh accused-company and the respondent has not filed any record to show that the petitioner is also one of

the partners. Moreover, the petitioner had retired from the partnership even on July 31, 1995, and, thereafter, he had no connection whatsoever

with the seventh accused. There is absolutely no connection of the revision petitioner with the cheque in question and the notice sent by the

respondent has been suitably replied to. The seventh accused is the partnership concern and the cheque was issued by the first accused in her

capacity as a proprietrix and, as such, the petitioner has to be discharged from the case.

The respondent complainant resisted the application, stating that the present application has been only to protract the proceedings. Already the

first accused filed an application before the Sub-Court, Tirupur, under the Insolvency Act. It has been filed only to cheat the creditors. The

petitioner as a partner, was in charge of the seventh accused-company and even now he continues to be a partner and there are records to prove

them. It is not correct to say that the revision petitioner had retired from the partnership on July 31, 1995, and the retirement is also not in

accordance with law.

After hearing both sides, the learned Magistrate dismissed the petition filed by the revision petitioner/fourth accused and aggrieved against this,

the present revision has been filed.

Learned counsel for the petitioner contended that the cheque was issued by the first accused in the capacity of proprietrix and, hence, no

partners can be added as accused in the complaint. There are no records to show that the revision petitioner is a partner in the concern during the

period when the cheque was issued. The revision petitioner is totally a stranger to the transaction and, as such, the complaint u/s 138 of the

Negotiable Instruments Act is not maintainable. The learned Magistrate ought to have allowed the application for discharge.

Heard learned counsel for the petitioner.

It is admitted that the respondent filed a complaint u/s 138 of the Negotiable Instruments Act against the seven accused and the same was taken

on file as C. C. No. 316 of 1998 on the file of the Judicial Magistrate-I, Tirupur. The revision petitioner is the fourth accused in the case. Learned

counsel for the petitioner contended that the cheque in question was issued by the first accused as proprietrix of the seventh accused-company

and, as such, the petitioner has to be discharged from the case. It was also contended that the petitioner is not a partner in the seventh accused-

company on the date of the alleged issue of the cheque and on this ground also, the revision petitioner is liable to be discharged.

A perusal of the complaint disclosed that the complainant came to know about the cheating of the first accused by using the status of proprietary

concern concealing the actual status of partnership firm with the intention to defraud the creditors. There is also an allegation in the complaint that

the seventh accused is a partnership firm and accused Nos. 1 to 5 are partners of the firm and all the accused actively participated in the day-to-

day affairs of the concern. Now, learned counsel for the petitioner contended that he is not a partner in the seventh accused-company and he

further stated that he had retired from the office on July 31, 1995. This admission will only indicate that he was a partner in the seventh accused-

company. The burden is on the revision petitioner to show when he lawfully retired from the partnership. There is absolutely no material on record

as on date to come to such a conclusion. Furthermore, the revision petitioner stated that the cheque was issued by the first respondent on behalf of

the seventh accused-company. For this, there is an allegation in the complaint itself that the first accused had issued the cheque as a proprietrix but

in reality the seventh accused is the partnership concern and there are materials to show that it is a partnership concern. It is also averred in para. 7

of the complaint that the office of the Commercial Tax Officer, Bazaar Circle, Commercial Taxes Building, Kumaran Road, Timpur, and records of

the Tamil Nadu Industrial Investment Corporation, in which all the accused availed of loan for the firm and running the loan account jointly till now.

The aforesaid facts would only indicate that it is a matter requiring evidence to decide the dispute between the parties. The question whether the

revision petitioner has retired from the concern or not is a matter to be considered only in the full-fledged trial. Similarly, the other contention is that

the first accused had deliberately issued the cheque as a proprietrix but in reality, the seventh accused-company is a partnership concern. Hence,

under the circumstances, I am of the view that the available materials are not sufficient to discharge the revision petitioner from the case and as a

mixed question of law and fact is involved, I am of the view that the respondent has to be given opportunity to let in evidence to prove the case and

it is also open to the petitioner to let in evidence to rebut the same. There is no illegality or infirmity in the order passed by the trial court and,

hence, no interference is called for.

For the reasons stated above, the revision fails and is dismissed. It is, however, open to the petitioner to agitate the very same points before the

trial court and the trial court is directed to complete the trial within a period of three months. Consequently, Criminal Miscellaneous Petition No.

3360 of 1999 is also dismissed.