Madras High Court
M/S.Maxwin vs Uma K.Iyer on 24 March, 2023
Author: N. Anand Venkatesh
Bench: N. Anand Venkatesh
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 https://www.mhc.tn.gov.in/judis Page No.2 of 10 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 https://www.mhc.tn.gov.in/judis Page No.3 of 10 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 https://www.mhc.tn.gov.in/judis Page No.4 of 10 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 https://www.mhc.tn.gov.in/judis Page No.5 of 10 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. https://www.mhc.tn.gov.in/judis Page No.6 of 10 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. https://www.mhc.tn.gov.in/judis Page No.7 of 10 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.
https://www.mhc.tn.gov.in/judis Page No.8 of 10 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 Page No.9 of 10 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 Page No.10 of 10