K.Gopalsamy vs M/S.Trk Textiles India Private ...
2021 Latest Caselaw 5351 Mad

                                                          Crl.O.P.No.500 of 2021

         IN THE HIGH COURT OF JUDICATURE AT MADRAS
                              Dated : 01.03.2021
                                   Coram
    THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH
                          Crl.O.P.No.500 of 2021
                     and Crl.M.P.Nos.290 & 291 of 2021

1. K.Gopalsamy

2. C.Vijayalakshmi
                                                                ...Petitioners
                                   Versus

M/s.TRK Textiles India Private Limited Company,
Rep. By its Authorised Share Holder/Administrative Officer,
Mr.Sivasalapathy
S/O.Govindasamy,
Panchampalayam Village,
Kangeyam Taluk,
Tiruppur district.
                                                ...Respondent/Complainant

      This Criminal Original Petition is filed under Section 482 of Criminal
Procedure Code praying to call for the records in STC.No.424 of 2019 on
the file of the learned Judicial Magistrate, Kangeyam and quash the same.

            For Petitioners            :     Mr.K.Myilsamy

            For Respondent             :     No appearance




1
                                                           Crl.O.P.No.500 of 2021



                                 ORDER

This petition has been filed to quash the proceedings in S.T.C.No.424

of 2019, on the file of the learned Judicial Magistrate, Kangeyam.

2. The respondent has filed a complaint under Section 138 of the

Negotiable Instruments Act against a partnership firm and its partners. The

petitioners have been arrayed as accused 3 and 4 in the complaint.

3. The respondent has been served with notice and the name of the

respondent has also been printed in the cause list. However, there is no

representation for the respondent either in person or through counsel.

4. The main ground that was raised by the learned counsel for the

petitioners is that the complaint filed by the respondent against the

petitioners do not satisfy the requirements under Section 141 of the

Negotiable Instruments Act. The learned counsel submitted that in the entire

complaint, there is no whisper with regard to the role played by the

petitioners and as to how they had acted and discharged their duties in the

day-to-day affairs of the partnership firms. The learned counsel in order to

Crl.O.P.No.500 of 2021

substantiate his submissions, referred to the judgment of this Court in

P.N.Stalin vs L.Kuzhanthalvelu reported in 2019 (3) Madras Weekly

Notes Crl. DCC 147.

5. The petitioners have been made as accused persons in their

capacity as partners of the partnership firm which has been made as the first

accused in the complaint. Admittedly, the cheque has been signed by the

second accused. It is true that the Negotiable Instruments Act provides for

applying the concept of vicarious liability in terms of Section 141 of the Act.

However, in order to sustain the same, there must be specific allegations

made in the complaint as to how and in what manner the partner was

incharge of and responsible for conduct of the business of the firm. The

same concept what is used for the director of a company is also applied

when it comes to a partner belonging to a partnership firm.

6. In the present case, the allegations made in the complaint does not

satisfy the requirements under Section 141 of the Negotiable Instruments

Act, insofar as the petitioners are concerned. The continuation of the

Crl.O.P.No.500 of 2021

proceedings will amount to abuse of process of Court.

7. In the result, the proceedings in STC. No.424 of 2019, on the file of

the learned Judicial Magistrate, Kangeyam, is hereby quashed and this

Criminal Original Petition is allowed. Consequently, connected

miscellaneous petitions are also closed.

01.03.2021

Index : Yes/No

Speaking Order (or) Non-Speaking Order

rli

To The Judicial Magistrate, Kangeyam.

Crl.O.P.No.500 of 2021

N.ANAND VENKATESH, J.,

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Crl.O.P.No.500 of 2021 and Crl.M.P.Nos.290 & 291 of 2021

01.03.2021