TMI Blog2017 (10) TMI 31X X X X Extracts X X X X X X X X Extracts X X X X ..... ncy Act does not loom large and protect the petitioner herein. Since, after the amendment as stated above dishonor of cheque has became a criminal liability and in this view of the matter though the petitioner herein be declared has "insolvent" under the "Presidency Towns Insolvency Act". However, it does not cloth him with immunity from criminal prosecution for dishonour of cheque and in this view of the matter this petition is devoid of merits and the same is dismissed. - Crl. OP Nos. 16389 and M.P.No.1 of 2010 and Crl.O.P.No.19988 of 2010 - - - Dated:- 19-9-2017 - Smt. Teekaa Raman, J. For the Petitioner : Mr. Sundarmohan For M/s.Suresh Associates, Mr.S.Jayakumar For the Respondents : Mr. P. M. Duraiswamy in both Crl.O.Ps ORDER Both Criminal Original Petitions have been filed under Section 482 Cr.P.C., challenging the correctness of the taking cognizance of the S.T.C.No.2936 of 2009, Judicial Magistrate No.I, Tirupur against the respective petitioner. 2. In Crl.O.P.No.16389 of 2010, the second accused in S.T.C.No.2936 of 2009 is the petitioner, seeking quashment of the summons issued in the above said S.T.C on taking cognizance for the dis-honoured of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd and fourth respondent herein and also send a communication through letter on 24.07.2009 and since the petitioner has retired from the partnership as early as on 01.01.2008, the private complaint which was emerged from cheque dated 25.07.2009 and 26.08.2008, he cannot be coupled with the criminal liability and seeks the quashment of the private complaint in so far as third accused is concerned. 8. In Crl.O.P.No.16389 of 2010 by the second accused, he prays for quashment of the private complaint in S.T.C.No.2936 of 2009 on the ground that he was already declared as insolvent on 03.09.2009 as per the orders of the High Court in I.P.No.121 of 2009 and hence, he cannot be prosecuted of the non-payment of the cheque amount. 9. The short point that needs to be addressed in the above two cases are as under:- i) Is an Insolvent a immune from criminal prosecution arising out of dishonour of cheque? ii) Whether the retired partner is liable for criminal prosecution for dishonour of cheque and whether such a plea can be considered in the quashment of the private complaint arising out of dishonour of cheque? 10. Crl.O.P.No16389 of 2010:- The petitioner/the second accuse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... another) wherein it related as held in the decision 32) Section 138 of the NI Act has been analysed by this Court in Kusum Ingots Alloys Ltd.[M/s.Kusum Ingots Alloys Ltd. v.M/s.Pennar Peterson Securities Ltd and ors.etc; [AIR 2000 SC 954:(2000)2SCC745] wherein this Court said that the following ingredients are required to be satisfied for making out a case under Section 138 of the NI Act: (i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account for the discharge of any debt or other liability; (ii) that cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (iii) that cheque is returned by the bank unpaid, either because the amount of money standing to credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to paid from that account by an agreement made with the bank; (iv) the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er this petition is devoid of merits and the same is dismissed. Consequently, connected Miscellaneous Petition is closed. 18. Crl.R.C.No.19988 of 2010:- The sole point that was emphasized by the petitioner herein for the quashment of the issuance of summons and issue taking of cognizance in S.T.C.No.2936 of 2009 wherein the petitioner herein is arrayed as accused No.3 is that he has already retired from the partnership firm viz., the second respondent herein/A1 on 01.01.2008 and therefore, the petitioner cannot be held liable for the mismanagment and action of the remaining partners namely the respondents 2 and 3 herein. 19. The learned counsel for the petitioner has submitted that as early as on 01.01.2008, the petitioner herein/A3 retired from the partnership firm and same was intimated to the third and fourth respondent on letter dated 24.07.2009 and also he moved the City Civil Court restraining the other defendants from using his name in the partnership firm by was of permanent injunction. 20. The learned counsel for the petitioner has submitted that in view of the factual position that the petitioner herein has retired from partnership firm even before the date of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
