TMI Blog2021 (1) TMI 16X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, according to me, the impugned judgments in these appeals are unsustainable. I do not want to make any further opinion in this case because I am remanding these five appeals to the lower court for fresh consideration in accordance to law. There is no representation for the accused in these cases. The matter remanded to the lower court to settle the matter or to defend the cases on any other point, if it is available - appeal allowed by way of remand. - CRL.APPEAL Nos.80,81,82,83/2014 & CRL.APPEAL No.1990/2004 - - - Dated:- 11-11-2020 - THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN FOR THE PETITIONER : BY ADV. SRI.C.A.ANOOP FOR THE RESPONDENT : R1 BY SRI.K.B.UDAYAKUMAR, SR.PUBLIC PROSECUTOR R2 BY ADV. SRI.I.DINESH MENON ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e filed alleging offence under section 138 of the Negotiable Instruments Act based on the dishonour of five separate cheques. 4. The complainant adduced evidence in all the 5 cases. In some of the cases defence evidence was also adduced. 5. After going through the evidence and documents, the trial court concluded that, the accused is not guilty under Section 138 of the Negotiable Instruments Act. Hence, the trial court acquitted the accused in all these five cases. 6. The trial court mainly relied the agreement dated 30.5.2001 which is marked in all the cases. It is an agreement entered into by the accused Mohandas and the complainant Rajeswari Gopalan. The contents of the said agreement are extracted hereunder: THIS AGREEMENT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #8377; 50,000/- dated 1-8-2002. Cheque for ₹ 50,000/-dated 1-1-2003. cheque for ₹ 50,000/-dated 1-6-2003. 5) Number one among us made to believe the number two among us that the said cheque will be duly honoured and encashed on presentation on its respective due dates. 6) That after paying the entire amount of ₹ 2,52,000/-within the time stipulated as above Number one will release Number two among from the bank liability as well as all other liabilities of the firm by substituting another person or by taking other appropriate steps acceptable to the Bank at that point the partnership will stand dissolved and Number 2 among us will retire from the partnership and cease to be a partner of the firm. But it is made c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oan account and Number 1 and his other assets will further be liable for the balance liability if any left out after appropriating the entire sale proceeds. 9) It is hereby made clear that the covenants of this agreement will be read and treated by the partners as additional clauses to the original partnership deed. 10) It is further made clear that by this agreement the partnership is not dissolved at present and the partnership will continue subject to the events specified in the agreement. SCHEDULE 1. Betchi Power hammer with 150 kg. capacity. 2. Betchi Power hammer with 100 kg.capacity. 3. Chainpully with stand -1 4. Grinding motor -1. 5. Grinding motor, flexible -1. 6. Blowers 2 7. Dril ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inant) in the agreement will have absolute right and liberty to takeover the entire firm and to manage and take profits whatsoever and to sell the firm with all the assets to the business to any person of her choice and Number 1 (accused) will not be having any right or claims what so ever to dispute or challenge it and all his right will stands relinquished. 9. Mainly relying upon clause 7 of the above agreement, the trial court acquitted the accused in all the above five cases. According to the trial court since one of the clause in the above agreement says the consequence of the dishonour of the cheque, the offence under Section 138 of the Negotiable Instruments Act is not attracted. I cannot agree with the same. There cannot be an ag ..... X X X X Extracts X X X X X X X X Extracts X X X X
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