TMI Blog2019 (2) TMI 393X X X X Extracts X X X X X X X X Extracts X X X X ..... that the petitioner was not a Director at the time of signing of the cheque or the same is without consideration cannot be evaluated, appreciated or decided at this stage which requires recording of the oral and documentary evidence which can be recorded only in accordance with law at the appropriate stage. Section 58(4) of The Limited Liability Partnership Act, 2008 makes it clear that there was no ground made out for the Trial Court to discharge the petitioner from the present case at that stage and the Trial Court was right in holding that sufficient material is on record to frame notice against the petitioner - petition dismissed - decided against petitioner. - CRL.M.C.507/2019 - - - Dated:- 31-1-2019 - MR. CHANDER SHEKHAR J. Petitioner Through: Mr. Amarjit Singh, Advocate Respondent Through: None CHANDER SHEKHAR, J. (ORAL) CRL.M.A. 2171/2019 1. Allowed, subject to all just exceptions. The application is disposed of. CRL.M.C.507/2019 CRL.M.A. 2170/2019 1. This petition has been filed under Section 482 of the Code of Criminal Procedure, 1973 ( Cr.PC , in short) for setting aside the proceedings arising out of the complaint filed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n his favour against the balance consideration. 3. Subsequently, the respondent did not come forward to pay the balance amount nor came forward to perform his part of the Agreement to sell dated 17.05.2013 however, the respondent unauthorizedly presented the aforesaid cheque bearing No. 003858 for encashment which got dishonoured and in consequence of which, the respondent firstly sent a legal notice dated 5.09.2014 and thereafter filed a complaint against the petitioner and the other co-accused in the case for the offence committed under Section 138 of the Negotiable Instrument Act, 1881 ( NI Act , in short) which got registered and the Trial Court vide order dated 17.11.2014 issued summons to the petitioner, and the other coaccused namely, Lotus Floriculture LLP. and the partners of the Lotus Floriculture LLP. Thereafter, vide order dated 3.10.2016 the names of the accused Nos. 2 3 (partners of Lotus Floriculture LLP) were deleted from the array of parties on the statement made by the respondent, that he does not want to prosecute them, leaving the petitioner and accused No. 1-Lotus Floriculture LLP to face the proceedings under Section 138 read with Section 141 of the NI Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amine the question, whether the Trial Court was justified or not in issuing summons to the petitioner vide the impugned order dated 17.11.2014. 10. It is a well settled law that the Trial Court is only expected to consider the prima facie case at this stage to proceed against the accused and not whether the case would result in conviction. 11. It needs no elaboration that at this stage the Court is required to evaluate the material and documents which have been placed on record by the petitioner and taken at the face value thereof, whether existence of the ingredients constituting the alleged offence or offences are prima-facie disclosed or not. 12. In Rajiv Thapar Ors. v. Madan Lal Kapoor, (2013) 3 SCC 330 , it has been held by the Supreme Court as under: 28. The High Court, in exercise of its jurisdiction under Section 482 of the Cr.P.C., must make a just and rightful choice. This is not a stage of evaluating the truthfulness or otherwise of allegations levelled by the prosecution/complainant against the accused. Likewise, it is not a stage for determining how weighty the defences raised on behalf of the accused is. Even if the accused is successful in showing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such, as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 of the Cr.P.C. to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice. 13. In D.K. Pandey v. State, [2010 (VII) AD (Delhi 881], it has been held by this Court that before passing summoning order, it is obligatory on the part of the Metropolitan Magistrate to consider material and evidence placed on record in the light of the offences committed and analyze it so as to come to the conclusion whether commission of offence(s) in terms of the provisions of law was/were prima facie disclosed or not (See: State of Bihar v. Rames ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iculture LLP. Further, Section 58(4) of The Limited Liability Partnership Act, 2008 reads as under: Registration and effect of conversion - (4) Notwithstanding anything contained in any other law for the time being in force, on and from the date of registration specified in the certificate of registration issued under the Second Schedule, the Third Schedule or the Fourth Schedule, as the case may be,- (a) there shall be a limited liability partnership by the name specified in the certificate of registration registered under this Act; (b) all tangible (movable or immovable) and intangible property vested in the firm or the company, as the case may be, all assets, interests, rights, privileges, liabilities, obligations relating to the firm or the company, as the case may be, and the whole of the undertaking of the firm or the company, as the case may be, shall be transferred to and shall vest in the limited liability partnership without further assurance, act or deed; and (c) the firm or the company, as the case may be, shall be deemed to be dissolved and removed from the records of the Registrar of Firms or Registrar of Companies, as the case may be. 1 ..... 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