Madras High Court
M/S.Maxwin vs Uma K.Iyer on 24 March, 2023
Crl.R.C.No.877 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 24.03.2023
CORAM
THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH
Crl.R.C.No.877 of 2017
1.M/s.Maxwin
Represented by its Partner P.Ramesh
S.F.No.368, Lakshmi Garden,
Nochipalayam Pirivu,
Veerapadi Village,
Palladam Road,
Tiruppur.
2.P.Ramesh ... Petitioners
vs.
Uma K.Iyer ... Respondent
Prayer: Criminal Revision filed under Sections 397 r/w 401 of the Code of
Criminal Procedure praying to call for the records of the case in C.A.No.1 of 2016
on the file of I Additional District and Sessions Court at Tiruppur order dated
21.04.2017 and S.T.C.No.2800 of 2007 on the file of Judicial Magistrate II,
Tiruppur order dated 10.12.2015 and set aside both the order.
For Petitioners : Mr.B.Thirunavukkarasu
For Respondent : Mr.C.Prabhakaran
Legal aid Counsel
https://www.mhc.tn.gov.in/judis
Page No.1 of 10
Crl.R.C.No.877 of 2017
ORDER
This Criminal Revision case has been filed against the judgment and order
passed by the I Additional District and Sessions Court, Tiruppur in C.A.No.1 of
2016, dated 21.04.2017, dismissing the appeal and confirming the judgment and
order passed by the learned Judicial Magistrate II Court, Tiruppur in STC
No.2800 of 2007, convicting the petitioners for offence under Section 138 of the
Negotiable Instruments Act and sentencing to undergo two years simple
imprisonment and to pay compensation of a sum of Rs.1,50,000/- (Rupees One
Lakh Fifty Thousand) under Section 357 (3) of Cr.P.C. and in default to undergo
three months simple imprisonment.
2.The respondent filed a private complaint against the petitioners on the
ground that the 1st petitioner is a partnership Firm and the 2nd petitioner is the
partner of the said Firm and the respondent was also a partner in the 1st petitioner
Firm. The respondent retired from the partnership Firm on 10.11.2006 and at the
time of retirement, towards the settlement of her share in the partnership Firm, the
subject cheque was issued by the petitioners for a sum of Rs.75,000/- (Rupees
Seventy Five Thousand only). When the cheque was presented for collection, it
was returned with an endorsement “Funds insufficient”. The respondent thereafter
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Crl.R.C.No.877 of 2017
issued a statutory notice calling upon the petitioners to pay the cheque amount.
The petitioners neither gave a reply nor settled the cheque amount and left with no
other option, the respondent filed the private complaint against the petitioners for
offence under Section 138 of the Negotiable Instruments Act.
3.The defence that was taken by the petitioners is that the respondent did
not contribute any capital to the partnership Firm and she was only a nominal
partner. Hence, there is no question of giving any share at the time of retirement of
the respondent. The next defence that was taken was that the respondent claims to
have been given three cheques and out of the same, only two cheques were
utilized and the respondent was not able to account for the remaining cheque. The
third main defence that was raised by the petitioners is that there was no existing
debt or liability and that the respondent has misused a signed cheque and the very
claim made by the respondent is unsustainable.
4.The Trial Court on considering the oral evidence of the respondent, who
examined herself as PW1 and the documents marked as Ex.P1 to Ex.P5 and also
considering the evidence of the representative of the 1st petitioner Firm, who was
examined as DW1, through whom Ex.D1 was marked, came to a conclusion that
the respondent has established the fact that the signature found in the cheque was
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Crl.R.C.No.877 of 2017
that of the 2nd petitioner and that there was no dispute with regard to the fact that
the respondent was a partner in the 1st petitioner Firm and that the Partnership
Deed marked as Ex.D1 also provided for the share of the capital of the partners
and accordingly, invoked the statutory presumption under Section 139 of the
Negotiable Instruments Act in favour of the respondent. The Trial Court also
found that the petitioners have not rebutted the statutory presumption and hence,
the Trial Court proceeded to convict and sentence the petitioners for offence under
Section 138 of the Negotiable Instruments Act. Insofar as the A3 is concerned, he
was acquitted from the charge.
5.The above judgment and order passed by the Trial Court was confirmed
by the Appellate Court and aggrieved by the same, the present Criminal Revision
case has been filed before this Court.
6.Heard Mr.B.Thirunavukkarau, learned counsel appearing on behalf of the
petitioners and Mr.C.Prabhakaran, learned Legal-aid-Counsel appearing on behalf
of the respondent.
7.The main ground that was raised before this Court was that there was no
debt or liability on the part of the petitioners and therefore, there is no occasion
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Crl.R.C.No.877 of 2017
for the petitioners to issue a cheque in favour of the respondent. This stand was
taken on the premise that the respondent did not contribute any capital to the
partnership Firm and hence, there is no question of any debt of liability arising in
favour of the respondent.
8.Both the Courts below took note of the fact that there was no dispute on
the side of the petitioners that the respondent was a partner in the 1st petitioner
Firm and she retired from the partnership in the year 2006. There was also no
dispute with regard to the signature found in the cheque. Both the Courts below
also took into consideration the Partnership Deed that was marked as Ex.D1
wherein, it was clearly mentioned that the amount found credited in the capital
and the current accounts of the partners are to be treated as their respective
capital. Insofar as the sharing of profit and loss is concerned, the respondent was
given the proportionate share of 25%. Taking all these into consideraton, the Trial
Court invoked the statutory presumption under Section 139 of the Negotiable
Instruments Act in favour of the respondent. This was confirmed by the Appellate
Court.
9.In the considered view of this Court, the petitioners were not able to bring
forth any strong materials to rebut the statutory presumption. There is absolutely
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Crl.R.C.No.877 of 2017
no explanation as to how the signed cheque came into his hands of the respondent,
except a vague plea that the unfilled signed cheque has been misused by the
respondent. That apart, the respondent retired in the year 2006 and the petitioners
did not take any effort to produce the books of accounts to show the status of the
partnership Firm after the retirement of the respondent. If any material had been
produced, it would have clearly revealed the status of the partnership Firm before
and after the retirement of the respondent from the partnership Firm. The
Partnership Deed itself gave a clear indication that the respondent was entitled for
proportionate share in the profit and loss to an extent of 25%. If really, the
respondent has not brought in any capital, there was no need to give any
proportionate share in favour of the respondent.
10.Even before the Appellate Court, a legal issue was raised to the effect
that the respondent did not give any public notice as mandated under Section 72
of the Partnership Act. The Appellate Court while considering this issue, came to
the correct conclusion that issuance of public notice will become relevant only
insofar as third parties are concerned and as between the partners, the retirement
can take effect by consent among the partners. Hence, the legal ground that was
raised by the petitioners was also correctly decided by the Appellate Court.
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Crl.R.C.No.877 of 2017
11.The learned counsel for the respondent brought to the notice of this
Court the judgment in Anbarasu vs. Mukanchand Bothra (Deceases); M.Gagan
Bothra reported in 2019 4 CTC 871 (Mad) and submitted that this Court while
exercising its revisional jurisdiction cannot act like a second appellate forum and
the revisional jurisdictional is very limited to test only if the order passed by the
Court below is perverse. For the very same proposition, the learned counsel also
relied upon the judgment of the Apex Court in State of Maharashtra vs.
Jagmohan Singh Kuldip Singh Anand reported in 2004 7 SCC 659.
12.This Court exercising its revisional jurisdiction, cannot undertake an in-
depth and minute re-examination of the evidence and upset the concurrent
findings of the Trial Court and the Appellate Court. This Court can interfere with
the findings only if those findings are perverse. This Court does not find that the
findings of both the Courts below suffer from any perversity warranting its
interference in this criminal revision case. Both the Courts below have properly
appreciated the evidence and given cogent reasons before coming to the
conclusion that the petitioners are liable to be convicted and sentenced under
Section 138 of the Negotiable Instruments Act. This Court does not find any
ground to interfere with the judgment and order passed by the Courts below.
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Crl.R.C.No.877 of 2017
Accordingly, the judgment and order passed by both the Courts below shall stand
confirmed.
13.This Criminal Revision case is disposed of in the following manner:
(a) The petitioners are directed to pay the compensation amount fixed by the
Trial Court to the tune of Rs.1,50,000/- (Rupees One Lakh and Fifty
Thousand only) on or before 17.04.2023.
(b) If the direction given in clause (a) is complied with, the offence shall stand
compounded and the judgment and order passed by both the Courts below
will stand set aside.
(c) If the petitioners deposit the amount as directed in clause (a), it is left open
to the respondent to file a memo before the Trial Court and seek for the
withdrawal of the amount which shall be permitted by the Trial Court.
(d) If the petitioners fail to comply with the directions issued in clause (a), the
second petitioner shall surrender before the Trial Court on 19.04.2023 and
the Trial Court shall ensure that the second petitioner undergoes the
sentence imposed by the Trial Court, and
(e) If the second petitioner fails to surrender before the Trial Court as directed
in clause (d), the Trial Court shall take immediate steps to secure the second
petitioner to make him undergo the sentence imposed by the Trial Court.
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Crl.R.C.No.877 of 2017
14.The Criminal Revision case is disposed of in the above terms. Post this
Criminal Revision under the caption 'For Reporting Compliance' on 21.04.2023.
24.03.2023
Index : Yes/No (2/2)
Internet : Yes/No
Speaking Order/Non-Speaking Order
Neutral Citation Case : Yes/No
ssr
To
1.The I Additional District and Sessions Court, Tiruppur.
2.The Judicial Magistrate II, Tiruppur.
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.877 of 2017
N. ANAND VENKATESH, J.
ssr
Crl.R.C.No.877 of 2017
24.03.2023
(2/2)
https://www.mhc.tn.gov.in/judis
