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TMI Blog2022 (9) TMI 380X X X X Extracts X X X X X X X X Extracts X X X X ..... th an endorsement "Payment Stopped by the drawer". Hence, after issuing statutory notice to the accused on 22/12/2006, the complaint was filed. 3. To prove his case, 3 witnesses and 12 Exhibits marked. On the side of the defence, 4 witnesses and 8 Exhibits were marked. 4. The Judicial Magistrate, Fast Track Court, Tiruchengode in S.T.C.No.49/2012 held the accused 2 and 3 are guilty of offence under Section 138 of Negotiable Instrument Act and convicted them to undergo 3 months S.I and to pay the cheque amount Rs.5 lakhs as compensation. On appeal by the accused, the Additional District and Sessions Judge, Namakkal in C.A.No.48/2012 reversed the finding of the trial Court and acquitted them. 5. The Judgement of Acquittal, is challenged in this Appeal. 6. The Learned Counsel appearing for the Appellant/complainant submitted that, the Lower Appellate court erred in reversing the well considered judgment of the trial Court. He also submitted that the accused admit the execution of the cheque and the signature. They failed to rebut the statutory presumption through reliable evidence. Without any reason, the Lower Appellate Court has disbelieved the evidence of P.W-1. On the date of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t from 04/12/2006. In the reply notice, the retirement from the partnership firm duly informed to the complainant. However, instead of enforcing the debt against the partnership Firm and its present partners, the complaint was filed. The Lower Appellate, on re-appreciating the evidence, rightly set aside the judgment of the Trial Court. Therefore, there is no error in the judgment of the Lower Appellate Court. 9. Contrarily, the Learned Counsel appearing for the Appellant/complainant submitted that, the signature in the cheque issued on behalf of the partnership firm is not denied. On the date of issuance of the Cheque, these respondents were the partners of the Firm. The source of money is proved through Ex.P-10, the Bank Statement of the Complainant. The entry in the bank statement indicates that on 11/08/2006, a sum of Rs.5 lakhs drawn from the complainant's Account. Besides, the Income Tax return of the Complainant and his wife for the Accounting Year 2007-2008 were marked as Ex.P-11 and Ex.P-12. The evidence on the side of the accused not sufficient to rebut the presumption. 10. As per the complaint, the loan was borrowed on 11/08/2006. The entry in the bank pass book of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gned cheques of partnership firm was entrusted. Thiru.Loganathan used those cheques for his personal necessity. One such cheque it is the subject cheque. However, no document produced to prove Thiru.Loganathan was authorised to deal with the cheques of the Firm, in any of the capacity. In the alleged Panchayat/mediation held after the death of Loganathan, if really there was dispute regarding signed cheques was discussed, then there should have been something in writing. It is the defence case that Thiru.Loganathan alone was indebted to the complainant and not the accused. The Lower Appellate Court has given undue weightage to this submission. In fact, the cheque is drawn from the account maintained by M/s.Shri Kumaran & Co. The 2nd accused is the signatory to the cheque. The 3rd accused is also authorised to operate the accounts. On the date of the cheque (11/10/2006) these two accused were the partners of the Firm. On the date of presentation of the cheque (27/11/2006) also they both were partners. Relying upon Ex.D-7, the partnership reconstitution Deed dated 15/11/2006, by which A-2 and A-3, Sellamuthu and Mohanasundari have joined as partners, the Lower Appellate Court has com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the recital of the retirement deed dated 04/12/2006 explicitly say that the retiring partners will have no responsibility on the existing debts. The penultimate clause in the recital of Ex.P-8 (retirement deed), says that from 01/12/2006 onwards, they are not responsible for any debts of the Firm. Therefore, after disclosing to the complainant that he has to cause notice to the present partners who have taken over the partnership firm with all assets and liability, the complainant for the reason best known, had not proceeded against the existing partners. In view of this Court, the Lower Appellate Court erred in holding so Chellamuthu one of the partner of M/s.Sri Kumaran & Co., has been examined as defence witness D.W.4. He, in the chief examination and the cross examination has not said anything about the cheque or the liability or who is liable or responsible for the cheque issued by A-2 when he was partner of the firm, but retired after bouncing of the cheque. The testimony of DW-4 in view of this Court is detrimental to the accused. Section 138 Negotiable Instrument Act says, any cheque drawn by a person on an account maintained by him with a banker for payment of any amount ..... X X X X Extracts X X X X X X X X Extracts X X X X
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