{"id":7590,"date":"2003-01-24T00:00:00","date_gmt":"2003-01-23T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sulochana-vs-m-kulasekaran-on-24-january-2003"},"modified":"2014-07-22T09:38:39","modified_gmt":"2014-07-22T04:08:39","slug":"sulochana-vs-m-kulasekaran-on-24-january-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sulochana-vs-m-kulasekaran-on-24-january-2003","title":{"rendered":"Sulochana vs M.Kulasekaran on 24 January, 2003"},"content":{"rendered":"
Madras High Court<\/div>\n
Sulochana vs M.Kulasekaran on 24 January, 2003<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDATED: 24\/01\/2003\n\nCORAM\n\nTHE HONOURABLE MR. JUSTICE A. PACKIARAJ\n\nCriminal Revision Petition No.1027 of 2001\n\n1.Sulochana\n2.Sampooranam\n3.Kavitha\n4.Rajamani\n5.R.Kathirvelu                    .....      Petitioners\n\n-Vs-\n\nM.Kulasekaran                          .....    Respondent\n\n        Revision  filed  against   the   order   dated   23.7.2000   made   in\nCrl.M.P.No.1864  of  2001  in  CC  NO.91  of  2001 on the file of the Judicial\nMagistrate No.1, Namakkal.\n\n!For petitioners :  Mr.N.Manokaran\n\n^For respondent :  Mr.V.K.Muthusamy, Senior Counsel,\n                for M\/s.  M.M.  Sundaresh\n\n:O R D E R\n<\/pre>\n
        This revision has been filed by accused 3, 5, 7, 9 and 10 in CC No.9 1
\nof 2001 on the file of the Judicial Magistrate  No.1,  Namakkal,  against  the
\norder  made  in Crl.M.P.No.1865 of 2001 in CC No.91 of 2001 on the file of the
\nJudicial Magistrate No.1, Namakkal,  dismissing  the  petition  filed  by  the
\npetitioners to drop proceedings against them.\n<\/p>\n
        2.The gist of the complaint is as follows :-\n<\/p>\n
        a)The  first  accused  is  Kongu  Spinning  Mills,  represented by its
\nManaging Partner, C.Rajendran.  The second accused  is  C.Rajendran,  Managing
\nPartner,  Kongu Spinning Mills, while the other accused 3 to 11 are alleged to
\nbe the partners, who  are  in-charge  of  the  conduct  of  the  business  and
\nresponsible for the day to day affairs of the firm.\n<\/p>\n
        b)The further case of the complainant is that the accused had borrowed
\nmoney  on behalf of the above said firm, from the complainant on various dates
\nand in order to discharge the above said debt, the second accused,  on  behalf
\nof  the  first  accused  and other accused, had issued a cheque drawn on South
\nIndian Bank Ltd.  for Rs.10 lakhs dated 01.1 1.2000 and the  said  cheque  was
\nsigned by  the second accused as Managing Partner of the above said firm.  The
\nsaid cheque was presented in the State Bank of India, Namakkal  on  29.12.2000
\nbut  the  same  as returned on 03.01.2001, with endorsement, “insufficiency of
\nfunds”.   The  complainant  received  the  intimation  on  12.01.2001  and  on
\n15.01.2001,   he  issued  a  notice,  as  contemplated  under  the  Negotiable
\nInstruments Act to the accused and it is said that the accused 3, 4, 5, 6  and
\n10 have received the notice on various dates i.e.  on 20.01.2001, 18.01.2001 ,
\n18.01.2001  and 24.01.2001, while accused 1, 2, 7, 8, 9 and 11 have refused to
\nreceive the notice, even though intimation was given to them.  It  is  further
\nsubmitted  that  a  reply has been issued on behalf of the accused, containing
\nfalse averments.  Since money has not been paid within the  mandatory  period,
\nthe present complaint has been filed against the accused.\n<\/p>\n
        c)Accused  1 and 2 have not preferred any application for dropping the
\nproceedings.  But the accused 4, 6, 8 and 11 have filed a petition in Crl.M.P.
\nNo.1864 of 2001 before the Judicial Magistrate No.1,  Namakkal,  to  drop  the
\nproceedings  and  the  same  was  dismissed Hence, they have filed revision in
\nCrl.R.C.  No.1026 of 2001, before this court, while the accused 3, 5, 7, 9 and<\/p>\n
10 had filed Crl.M.P.  No.1865 of 2001 before the  said  Magistrate,  for  the
\nsame  relief  and it was also dismissed, against which the present revision is
\nfiled.\n<\/p>\n
        3.The point that has been  raised  by  the  petitioners  is  that  the
\npetitioners  are  not partners of the first accused firm, but are the wives of
\naccused Nos.2, 4, 6, 8 respectively and they have nothing to do with the  firm
\nas  such,  and  hence  their implication in the case is mala fide and that the
\nproceedings against them has to necessarily be dropped.\n<\/p>\n
        4.To substantiate the fact that they are not partners, the petitioners
\nhave produced ‘Form-A’ from the  Office  of  the  Registrar  of  Firms,  which
\nindicates that it is only accused Nos.2, 4, 6, 8, 11 and on Periyasami, who is
\nnot  arrayed as accused, are partners and according to the learned counsel for
\nthe petitioners, a bald allegation has been made in the complaint which  reads
\nas follows:-\n<\/p>\n
        “The  accused  No.2 is the Managing Partner of the above said firm and
\nthe other accused are the partners of the above said firm.  The  accused  firm
\nis a spinning mills producing yarns of various kinds from cotton.  The accused
\n2 to 11 are in-charge and conduct of the business and also responsible for the
\nday to  day  affairs  of  the  above  said  firm.    The  accused  2 to 11 are
\nresponsible for the commissions and omissions of the above said firm by virtue
\nof partnership”\n<\/p>\n
        5.The sum and substance of the argument of the learned counsel for the
\npetitioners  is  that  there  is  no  material  in  the  entire  complaint  to
\nsubstantiate  the  guilt  of  the  petitioners  and  the  mere  allegation not
\nsupported with any materials is not enough to launch prosecution.\n<\/p>\n
        6.It is further contended  that  when  a  notice  was  issued  by  the
\ncomplainant to the accused stating that they were the partners of the firm and
\nwere responsible  for  its  conduct,  accused Nos.  4, 5, 6, 10 and 1 1 sent a
\nreply notice stating that they are not in-charge of the conduct of the day  to
\nday   business   of  the  complainant  mills  and  that  the  complainant  has
\nunnecessarily roped in, the wives of accused nos.2, 4  ,  6  and  8  who  have
\nnothing to  do  with  the  running  of  the  firm.   ( Though the reply notice
\ncontains other particulars they may not be very relevant for  the  purpose  of
\ndeciding this case).  The complaint has been filed only on the receipt of this
\nreply  notice  and  the  complaint  specifically  states  that A-2 to A-11 are
\nin-charge of the business and administration of the  firm,  according  to  the
\npartnership  deed  and  it  is  to be noted that the complainant has failed to
\nproduce any material, much less the partnership deed which would  disclose  as
\nto  who really the partners are and who is in-charge of the administration and
\nconduct of the business.  On the  other  hand,  the  petitioners  herein  have
\nproduced  Form-A certificate, from the office of the Registrar of Firms, which
\naccording to them is a public document and the court is entitled to peruse the
\nsame and that it is seen that these petitioners did not play any part  in  the
\nadministration  of  the  mills  and  as  such, they cannot be saddled with any
\ncriminal liability.  Since this document produced by the petitioners herein is
\na public document, which would throw light on the actual partners, it shall be
\nconsidered at a later stage, since it has not been brought  on  record  as  on
\ndate.   Be  that as it may, this court is only constrained to find out whether
\nthere is any case made out are not on its own.\n<\/p>\n
        7.The fact that the second accused signed the cheque on behalf of  A-1
\nand  other  accused  and  issued  it  to  the complainant is not challenged at
\npresent.  The only bone of  contention  in  this  petition  is  whether  these
\npetitioners  are  partners  or administrators of the the first accused company
\nand they are in-charge of the day to day affairs  and  administration  of  the
\nfirm  and  as  such,  whether  they  come  under  the  purview  of Section 141
\nNegotiable Instruments Act.\n<\/p>\n
        8.Per contra, the learned counsel for the complainant would argue that
\nthe trial has not proceeded and if the allegations in the  complaint  mentions
\nthat the petitioners are partners and that they are incharge of the day to day
\nadministration  of  the  company, nothing more is needed for the court to take
\ncongnizance.  The truth or otherwise in the complaint cannot be gone  into  by
\nthe magistrate or this court at this stage.\n<\/p>\n
        9.In support of his contention, the learned counsel for the respondent
\ncited the  decision  reported in Karumuthu C.Sundaran and 5 others vs.  Indian
\nBank Merchant Banking Services Ltd.  reported in 2001 1 LW Crl.   326  wherein
\nhis  Lordship  M.Karpagavinayagam  has considered the various decisions of the
\nSupreme court and ultimately following the said decisions have held that it is
\nenough if the  complainant  mentions  that  the  accused  were  in-charge  and
\nresponsible  for the conduct of the business of the company for the magistrate
\nto take cognizance, which would come within the purview of section 141 of  the
\nnegotiable instruments act.\n<\/p>\n
        10.Therefore, two questions arise in this case :-\n<\/p>\n
        i)  Whether  there  is  any  material to show that the petitioners are
\npartners or that mere  allegation  made  by  the  complainant  that  they  are
\npartners will ipso facto be sufficient to hold that they are partners ?\n<\/p>\n
        ii)  What is the allegation or averment that is needed for prosecuting
\na person under Section 138 of the Act, who is alleged to be a partner  but  in
\nfact, not a partner ?\n<\/p>\n
        11.In  the  present  case,  no doubt, as stated in the earlier part of
\nthis order, the complainant has averred that A-2 to A-11 are partners and they
\nare in charge and conduct of the business and are responsible for the  day  to
\nday affairs  of  the  said  firm.  They are responsible for the commission and
\nomission of the above said firm.  Apart from this there is absolutely no other
\nallegation.  The complainant has filed the complaint only on  receipt  of  the
\nreply  notice  and  the  complaint  specifically  states  that A-2 to A-11 are
\npartners and are in-charge of the day to day affairs of the company as per the
\npartnership.\n<\/p>\n
        12.In normal circumstances, I feel that it  would  suffice  to  launch
\nprosecution under section 138 of the Act.  But here is a case when immediately
\nafter  the  cheque  has  been  dishonoured,  a  notice  has been issued to the
\npetitioners.  However, a copy of the same has not been placed along  with  the
\ncomplaint, though unserved covers to the other accused have been kept.\n<\/p>\n
        13.Be  that  as it may, the petitioners have replied the same and have
\nclearly come out with a version that they are not partners.  In addition, they
\nhave clearly stated that it is only A-2 4, 6, 8, 11  and  one  Periyasami  are
\npartners.   Though the notice speaks of other details, about the difference of
\nopinion between the partners, it may not be necessary for me to dwell upon all
\nthese particulars.  Suffice to say that as early as 8.2.2001, the  petitioners
\nhave  by way of legal notice indicated to the complainant\/respondent that they
\nare not partners.  But still, the respondent has filed the  complaint  against
\nthem for the above said offences.\n<\/p>\n
        14.I  am conscious of the fact that when prosecution is launched under
\nsection 138 NIA, there is a rebuttable presumption on the accused  and  it  is
\nfor him  to establish that he is not liable to pay the amount.  However, in my
\nopinion, the duty is cast on the complainant to come out with an averment  for
\nwhich he  can fortify with substantive evidence in case of necessity.  This is
\none such case.  The complainant has not only averred that  they  are  partners
\nbut has further gone to the extent of saying that they are partners as per the
\n‘partnership’.  Therefore, when he refers to a particular deed on the basis of
\nwhich  he  terms  these  petitioners  to  be partners and when the accused are
\ndenying that they are partners even before the launching of the complaint, the
\ncomplainant should have produced that document to  establish  the  same.    It
\nwould  not  be  out  of  place  for  me to state that when anybody relies on a
\ndocument that needs to be registered, oral evidence is prohibited  from  being
\ngiven,  except  the  production  of  the document itself as contemplated under
\nsection 92 of the Indian Evidence Act.  When the  said  document  has  already
\nbeen  admittedly  reduced into writing as contemplated under section 91 of the
\nIndian Evidence Act, in such cases, having stated in the  complaint  that  the
\npetitioners   are  partners  according  to  the  partnership  deed,  then  the
\ncomplainant ought to have produced the partnership deed.  In my  opinion,  the
\nfailure on the part of the complainant to do so and merely asserting that they
\nare  partners,  when  it has been specifically denied at the earliest stage by
\nthe accused would not be sufficient for launching prosecution.\n<\/p>\n
        15.Even at the revision stage, when time was specifically  granted  to
\nthe  petitioners to bring about materials to show that they were partners, the
\ncomplainant did not do so.\n<\/p>\n
        16.As far as the reliance to be placed on Form -A certificate obtained
\nfrom the Registrar of Firms, decisions were cited by the  bar  on  either  way
\nthat  mere  production  of a document by the accused without being duly marked
\nand that too before the commencement of trial should not be considered.  Since
\nthere are conflicting views I  am  not  constrained  to  pass  any  considered
\nopinion on  that  issue.  I place reliance on the document namely, partnership
\ndeed in the present case  only  for  my  personal  satisfaction  and  to  lend
\nassurance  after  coming  to  a  conclusion  that the prosecution had no other
\nmaterials to support  their  case  that  they  are  partners,  and  since  the
\ncomplainant  has  averred  that  the  petitioners  are  partners  as  per  the
\npartnership deed.\n<\/p>\n
        17.Yet another decision of the Apex Court which supports the claim  of
\nthe petitioners is the decision made in G.Sagar Suri and another Vs.  State of
\nUP  and others reported in 2000(II) CTC 107, wherein Their Lordships have held
\nthat when the complainant launched a complaint with mala fide motive  to  rope
\nin  all  members of the family for nonpayment of loan amount without regard to
\ntheir role or participation, such complaint is an abuse of process of law  and
\nthe proceedings are liable to be quashed.\n<\/p>\n
        18.Hence,  I  see  that the prosecution against the petitioners cannot
\ncome under the category of Section 141 (1) of the Negotiable Instruments Act.\n<\/p>\n
        19.The next question that arises for  consideration  is  what  is  the
\nposition if  they  are  not partners.  If the person who is made an accused is
\nnot partner, section 141(2) of Negotiable Instruments  Act,  states  when  the
\ncompany  has  committed offence, any other person is also liable provided, the
\nsaid act has been done with the consent or connivance or attributable  to  any
\nneglect on  the  part  of  any  such  person  i.e.   to say that there must be
\nsatisfying materials or averments in the complaint that  the  petitioners  had
\ncommitted  offence  and  that  the  cheque  in  question was issued with their
\nconsent or connivance or the offence is attributable to  any  neglect  on  the
\npart of the petitioners.  This clause also is conspicuously not present in the
\ncomplaint  and  hence  the  petitioners  do  not  come under the provisions of
\nSection 141(2) of the Negotiable Instruments Act either.\n<\/p>\n
        20.The learned  counsel  for  the  petitioner  would  argue  that  the
\nrevision itself  is  not  maintainable in law.  Since according to the learned
\ncounsel, it is interlocutary order.  The learned counsel also placed  reliance
\non the  decision  of  this court made in Classic Apparels Limited rep.  By its
\nManaging Director Vs.  M\/s.Arizona Exports made  in  Crl.R.C.No.999  of  2000,
\nwherein  His  Lordship Justice B.Akbar Basha Khadiri has considered the powers
\nto be exercised under 482 Cr.P.C in dealing with cases of this  sort  and  has
\nheld  that  as  charges could not be framed in a summons case, the question of
\ndischarge does not arise.\n<\/p>\n
        21.It is true that discharge does not arise in a summons  case.    But
\neven  if  the  petitioner  prays for discharge in such cases, we cannot give a
\nrestrictive meaning to the word discharge, instead  we  can  interpret  it  as
\ndropping the proceedings against them.  As a matter of fact, the Supreme Court
\nin SLP No.640\/99, have in clear terms, stated that the accused can raise these
\nparticular  points  (involved  in that case) and file a petition to discharge.
\nThe  said  case  also  relates  to  prosecution  under  section  138  N.I.Act.
\nTherefore, in my opinion, instead of giving a restricted meaning to the actual
\nwords, we have to see the purport of the petition or the result the petitioner
\nseeks for.   In this context, I cannot but refer to the oft quoted decision of
\nthe Supreme Court in Amarnath Vs.  State of Haryana reported  in  1978  SCC  (
\nCrl,)585 which as follows:-\n<\/p>\n
        2.The  concept  of interlocutory order qua the revisional jurisdiction
\nof the High Court was completely foreign to the earlier  1898  Corde  and  the
\n1955 Amendment  to that Code.  Under the 1955 Amendment widest possible powers
\nof revision had been given to the High Court under Sections 435 and 439 of the
\n1898 Code and the High Court could examine the propriety of any order, whether
\nfinal or interlocutory, passed by any subordinate court in any matter.  In the
\n1973 Code Section 397(2) was incorproated with the avowed purpose  of  cutting
\nout delays and ensuring that the accused persons got a fair trial without much
\ndelay and  the  procedure  was  not made complicated.  Section 397(2) provided
\nthat the powers of  revision  shall  not  be  exercised  in  relation  to  any
\ninterlocutory order.  The paramount object in inserting this new provision was
\nto safeguard the interests of the accused.\n<\/p>\n
        (3)The  term  “interlocutory order” in Section 397(2) of the 1973 Code
\nhas been used in a restricted sense and not in any broad  or  artistic  sense.
\nIt  merely denotes orders of a purely interim or temporary nature which do not
\ndecide or touch the important rights or the liabilities of the parties.    Any
\norder which substantially affects the right of the accused, or decides certain
\nrights of the parties cannot be said to be an interlocutory order so as to bar
\na revision to the High Court against that order, because that would be against
\nthe  very  object  which  formed  the  basis  for insertion of this particular
\nprovision in Section 397 of  the  1973  Code.    Thus,  for  instance,  orders
\nsummoning  witnesses,  adjourning  cases, passing orders for bail, calling for
\nreports and such other steps in aid of the pending proceeding,  may  no  doubt
\namount  to  interlocutory  orders  against  which  no revision would lie under
\nsection 397(2) of the 1973 Code.  But orders which are matters of  moment  and
\nwhich affect or adjudicate the rights of the accused on a particular aspect of
\nthe  trial  cannot be said to be interlocutory so as to be outside the purview
\nof the revisional jurisdiction of the High Court.\n<\/p>\n
        22.In the present case when the rights of the petitioners are  decided
\nonce  and  for  all  it certainly amounts to a final order in relation to that
\nparticular issue and consequently a revision is maintainable.\n<\/p>\n
        23.Hence I see that the prosecution against the petitioners herein  is
\nnot maintainable and accordingly quash the proceedings in so far as it relates
\nto them.\n<\/p>\n
Index:Yes
\nWebsite:Yes<\/p>\n
tar<\/p>\n
To<\/p>\n
The Judicial Magistrate NO.1, Namakkal<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Sulochana vs M.Kulasekaran on 24 January, 2003 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24\/01\/2003 CORAM THE HONOURABLE MR. JUSTICE A. PACKIARAJ Criminal Revision Petition No.1027 of 2001 1.Sulochana 2.Sampooranam 3.Kavitha 4.Rajamani 5.R.Kathirvelu ….. Petitioners -Vs- M.Kulasekaran ….. Respondent Revision filed against the order dated 23.7.2000 made in Crl.M.P.No.1864 of […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-7590","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nSulochana vs M.Kulasekaran on 24 January, 2003 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/sulochana-vs-m-kulasekaran-on-24-january-2003\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sulochana vs M.Kulasekaran on 24 January, 2003 - 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