Madras High Court
Chinthamani vs Sree Maruthi Processor on 7 January, 2021
Crl.A.No.548 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 07.01.2021
CORAM
THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA
Crl.A.No.548 of 2013
CHINTHAMANI,
W/o.Natarajan .. Appellant/Complainant
Vs
1.Sree Maruthi Processor,
Represented by its Partner
R.Palanichamy,
2.R.Palanichamy,
S/o.Ramasamy gounder .. Respondents/A1 & A2
PRAYER: Criminal Appeal filed under section 378(4) Cr.P.C., to prefer
this memorandum of grounds of criminal appeal against the Judgement of
the learned District and Sessions Judge cum Fast Track Court, Namakkal
in C.A.No.96 of 2010, acquitting the respondents against the Judgement of
the learned Judicial Magistrate No.2, Namakkal in STC.No.266 of 2009.
For Appellant : Mr.C.D.Johnson
For Respondents : Mr.I.C.Vasudevan
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Crl.A.No.548 of 2013
JUDGMENT
(The case has been heard through video conference)
For the sake of convenience, the Appellant and the Respondent will
be referred to as the Complainant and Accused respectively.
2.The Criminal Appeal has been filed by the Complainant,
challenging the Judgement of acquittal made in C.A.No.96 of 2010, dated
03.06.2011, passed by the learned Additional District and Sessions Judge,
Fast Track Court, Namakkal, acquitting the Accused 1 & 2 by reversing
the Judgement of conviction and sentence passed by the learned Judicial
Magistrate No.2, Namakkal, in STC.No.266 of 2009, dated 22.09.2010, for
the offence under Section 138 of the Negotiable Instruments Act.
3.The Complainant had filed STC.No.266 of 2009, on the file of the
learned Judicial Magistrate No.2, Namakkal, against A1/Partnership Firm
and A2 /Partner of A1 Firm and A3/Wife of A2/Partner of A1 Firm.
4.Against the said conviction and sentence passed by the learned
Judicial Magistrate No.2, Namakkal in STC.No.266 of 2009, dated
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Crl.A.No.548 of 2013
22.09.2010, A1/Partnership Firm and A2/Partner of A1 Firm, have filed
Criminal Appeal No.96 of 2010, before the learned Additional District and
Sessions Judge, Fast Track Court, Namakkal. The Appellate Court, by the
the Judgement dated 03.06.2011, allowed the appeal and set aside the
Judgement of conviction and sentence passed by the learned Judicial
Magistrate No.2, Namakkal in STC.No.266 of 2009, dated 22.09.2010 and
acquitted the Accused. Against which, the present appeal has been filed by
the Complainant.
5.The brief facts of the case is that the Complainant was running the
business of Poultry and Textiles. A1/Partnership Firm was engaged in the
business of processing of Yarn and A2 and his wife A3 were the partners
of A1/Partnership Firm. During the course of the business, the
Complainant got in touch with the Accused and that due to the
acquaintance, the Accused borrowed a sum of Rs.3,00,000/- from the
Complainant, by way of cash on 17.11.2008, for their business needs.
Towards of the discharge of the liability, A2/Partner of A1 Firm had issued
a cheque, dated 19.11.2008, drawn on Karur Vysya Bank, Erode Branch,
for Rs.3,00,000- from the account of A1/Partnership Firm, which was
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Crl.A.No.548 of 2013
marked as Ex.P1. The Complainant had presented the cheque for collection
on 17.12.2008 in Canara Bank, Thanthathripuram Branch, and it was
returned as unpaid on 18.12.2008 stating “Insufficient Funds”. The
Returned Memo was marked as Ex.P2. The Complainant had informed to
the Accused in person and since they had not repaid the said amount, he
had sent a legal notice on 30.12.2008, through his counsel which was
marked as Ex.P3 and the same was not received by the Accused and that it
had been returned to the Complainant. The returned Legal Notice, returned
Postal Cover and the Acknowledgement were marked as Exs.P4, 5 and 6,
since the accused had not paid the said amount, the Complainant had filed
STC.No.266 of 2009.
6.On the side of the Complainant, he examined himself as P.W.1 and
marked documents as Exs.P1 to P6. When questioned under Section
313(1)(b) Cr.P.C., the accused denied the charges and on the side of the
Accused, A2/Partner of A1 Firm and A3 (wife of A2) were examined as
D.Ws.1 and 2 and however, no documents were marked on the side of the
accused.
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Crl.A.No.548 of 2013
7.The Trial Court found A1/ Partnership Firm and A2/Partner of A1
Firm guilty for the offence under Section 138 of the Negotiable
Instruments Act, imposed a fine of Rs.2,500- on A1/Partnership Firm to be
paid to A2/Partner of A1 Firm and in default to undergo Six Months
Simple Imprisonment and A2/ Partner of A1 Firm was sentenced to
undergo One Year Simple Imprisonment and A3 /Wife of A2 was found
not guilty and she was acquitted in STC.No.266 of 2009, dated
22.09.2010.
8.Against the Said Judgement of conviction and sentence,
A1/Partnership Firm and A2/Partner of A1 Firm, preferred Criminal
Appeal No.96 of 2010, before the learned Additional District and Sessions
Judge, Fast Track Court, Namakkal and the Appellate Court, by the
Judgement dated 03.06.2011, allowed the appeal and acquitted
A1/Partnership Firm and A2/Partner of A1 Firm. Against which, the
present Criminal Appeal has been filed by the Complainant.
9.The learned counsel for the Appellant/Complainant would submit
that the Appellate Court erred in acquitting A1/Partnership Firm and
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Crl.A.No.548 of 2013
A2/Partner of A1 Firm. The Trial Court having found that the Complainant
has proved his case beyond reasonable grounds by convincing evidence
had found the accused guilty and convicted them. He would submit that A1
is the partnership Firm and A2 is the partner of A1 Partnership Firm and
they have received an amount of Rs.3,00,000/- from the Complainant and
they have not repaid the same and thereby, the trial court had rightly
convicted A1/Partnership Firm and A2/Partner of A1 Firm. Whereas, the
Appellate Court on flimsy grounds, finding that no notice was issued to A1
Firm and wrongly finding that the notice was not duly served on
A2/Partner of A1 Firm had acquitted A1/Partnership Firm and A2/Partner
of A1 Firm and thereby, he would seek to set aside the Judgement.
10.Per Contra, the learned counsel for the Accused would submit that
A1 is a Partnership Firm and A2 is the partner of the Firm. It is the
admitted case of the Complainant that the amount has been borrowed for
the purpose of business, on behalf of the A1/Partnership Firm and the
cheque had also been issued from the account maintained by
A1/Partnership Firm. The Trial Court without taking into consideration,
the legal aspect of non issuance of notice to A1/Partnership Firm, which
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Crl.A.No.548 of 2013
had borrowed the money and issued the cheque and non service of notice
on A2/Partner of A1 Firm had erroneously convicted A1/Partnership Firm
and A2/Partner of A1 Firm. Whereas, on Appeal, the Appellate Court,
rightly finding that no Statutory Notice was issued on the Partnership Firm
and finding that the notice was not duly served on A2/Partner of A1 Firm
and also finding that the complaint filed against the Accused, under
Section 138 of the Negotiable Instruments Act, cannot be maintained
against the partners of the Firm, without issuing notice to the Firm, had
rightly allowed the appeal and acquitted the Accused. Further, finding that
the cheque had been issued by A1/Partnership Firm and without proper
notice to the Firm, vicarious criminal liability cannot be fastened on A2,
who is the partner of A1 Firm had rightly held that the complaint against
the A2/Partner of A1 Firm was not maintainable and allowed the appeal.
Further, the Appellate Court, had also rightly found that the Complainant
had not proved that the notice was served on the accused.
11. In support of his contention, the learned counsel for the Accused
relied on the Judgements of the Hon'ble Apex Court in Aneeta Hada Vs.
Godfather Travels and Tours Private Limited reported in (2012) 5 SCC
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Crl.A.No.548 of 2013
661 and the Judgement of this court in Crl.O.P.No.13147 of 2015, dated
23.07.2019.
12.Heard the learned counsel on either side, perused the materials
placed on record.
13.Admittedly, in this case, A1 is the Partnership Firm and the money
had been borrowed by A2/Partner of A1 Firm, for the business purpose of
A1/Partnership Firm. Further, in discharge of the liability, the cheque
belonging to A1/Partnership Firm had been issued to the Complainant. The
Complainant had not issued notice to A1/Partnership Firm. The Hon'ble
Supreme Court in Aneeta Hada Vs. Godfather Travels and Tours Private
Limited reported in (2012) 5 SCC 661 has settled that a complaint filed
under Section 138 of the Negotiable Instruments Act cannot be maintained
against a Company/Partnership Firm, without issuance of Statutory Notice
to the Company/Partnership Firm. The same proposition has been followed
by this Court in Elangovan Vs. Ganesan reported in 2014 (4) MLJ Crl
517 with regard to the Partnership Firm.
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Crl.A.No.548 of 2013
14. Admittedly, in this case, finding that no legal notice has been
issued to A1/Partnership Firm that too, when the amount had been
borrowed for the business of A1/Partnership Firm. The Appellate Court
had rightly finding that vicarious liability cannot be fastened on the partner
of the Firm without notice to the Firm had rightly allowed the appeal and
acquitted the accused. This Court is of the opinion that the Judgement of
acquittal needs no interference.
15.In view of the above, the Criminal Appeal filed by the
Appellant/Complainant stands dismissed and the Judgement passed by the
learned Additional District Sessions Judge, Fast Track Court, Namakkal in
C.A.No.96 of 2010, dated 03.06.2011 stands confirmed.
07.01.2021
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Internet : Yes / No
Index : Yes / No
Speaking Order/Non Speaking Order
ssi
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Crl.A.No.548 of 2013
A.D.JAGADISH CHANDIRA,J.
ssi
To
1.The District and Sessions Judge,
Fast Track Court, Namakkal.
2. The Judicial Magistrate No.2,
Namakkal.
Crl.A.No.548 of 2013
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