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2021 (10) TMI 759 - HC - Indian LawsDishonor of Cheque - discharge of existing liability - sufficient averments present or not - Section 138 of the Negotiable Instruments Act, 1881 - HELD THAT:- In the present case, both A2 and A3 are partners of A1/Firm. When a cheque is issued for a particular transaction on behalf of the Partnership Firm, then both have a co-existing liability with respect to ensuring that the cheque is honoured. If the cheque is dishonoured and the prosecution is launched, then both have a co-existing liability to face such prosecution unless the Partnership Deed specifically excludes a particular partner or includes a partner as a sleeping partner or a minor partner only for the benefit of the Partnership Firm. In all other circumstances, both partners sink together or survive together. With respect to the averments made, the respondent had specifically stated that the petitioner herein is also responsible for the day-t0-day activities of the Firm. It had been very specifically stated that the cheques were signed in her presence. Those are facts to be established and trial is the answer. If the petitioner herein/A2 is able to establish during the course of trial that she never had any direct role in the transactions of A1/Partnership Firm or that she would not gain if the Partnership Firm gets a profit or that she would not suffer a loss if the Partnership Firm ends up in loss over any particular transaction, then, evidence adduced in that regard would certainly be properly appreciated by the learned Magistrate. Inciting the parties to adduce evidence would be the proper course to be adopted to examine the points put forth by the petitioners herein, who is A3 in both the Calendar Cases - Petition dismissed.
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