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TMI Blog2025 (5) TMI 1521X X X X Extracts X X X X X X X X Extracts X X X X ..... used/Ravi Kumar in discharge of his admitted liabilities as well as penalties against the non-submission of C-Form, issued an Account Payee post dated Cheque 579701 dated 27.02.2016 in the sum of Rs. 26,82,324/- drawn on Corporation Bank, Indira Nagar, Chennai-600020, which on presentation was dishonoured with the remarks 'Funds Insufficient' vide Return Memo dated 09.03.2016. 4. The Legal Notice dated 16.03.2016 was served upon the Petitioners/Accused making a request to make the payment of the cheque amount within 15 days, which they failed to do. Instead, they gave a false and frivolous Reply dated 30.03.2016 denying their liability. Consequently, Complaint under 138 NI Act was filed against the Petitioners. 5. The Petitioners were summoned by the learned MM vide Order dated 07.11.2016. Aggrieved by the said Summoning Order, the Petitioners (Accused) have filed the present petition. 6. It is submitted that the summons issued petitioner No3 and the cognizance taken, ought to be quashed. 7. The maintainability of the Complaint itself is challenged on the ground, firstly that no proper Legal Notice of Demand has been served on the Petitioners. To make a person liable under S.13 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so been issued in 2009 and not in 2016 as has been alleged in the Complaint. 14. Learned M.M. has erred in issuing the summons to the Petitioners as Respondent Company has not produced any evidence whatsoever to prove any existing debt or liability against the Petitioners to have issued the cheque in question and that too, in the year 2016. The Respondent Company has not annexed any Ledger account to make good its submissions. The business between the parties ended in the year 2013 because of breach of contract by Respondent Company. Instead of settling the account and making payment due to the Petitioner Firm, the Respondent Company has filed the Criminal Complaint under 138 N.I. Act, to harass and intimidate the Petitioners with the intent to extract money. 15. The Respondent Company has committed breach of trust as the Cheques given by Petitioner No. 1 Firm as security as per Trade Practice, have been misused. These cheques after the business ended in the year 2013, were liable to be returned which the Respondent Company failed to do despite Legal Notice dated 24.01.2013 sent by the Petitioners. The Respondent Company failed to reply to the aforesaid Notice, which implies that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd nothing has been alleged against her. In the Complaint as well as Legal Notice given by Respondent Company, no role has been attributed to the Petitioner No. 3 and she is also not a signatory to the cheque. 21. It is further submitted that even in the Legal Notice issued to Petitioner Nos. 2 and 3 by the Respondent Company, there is no averment that Petitioner Nos. 2 and 3 are in charge and responsible for the affairs of Petitioner No. 1. In the absence of specific averment, no liability can be attributed to the Petitioners. 22. It is well settled that in the absence of specific averments regarding the role of a partner in the Firm, the said Partner cannot mechanically be made the Accused in the proceedings under Section 138 NI Act. Reliance has been placed on Monaben Ketanbhai Shah and Anr. vs. State of Gujarat and Ors., (2004) 7 SCC 15 wherein it was noted that where the person is a sleeping Partner who may be ladies and others, are not required to take part in the business of the Firm and may not know anything about the Business or the Firm, they cannot be held responsible for the conduct of the Business or the Firm. Reliance is also placed on Sham Sunder and Ors. vs. State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Ms. Arun Chitra, had been issued Notice as partners of M/s Surya Polymers. The reference is also to the impugned cheque dated 27.02.2016, which was issued for and on behalf of M/s Surya Polymers and signed by the Petitioner, Mr. Ravi Kumar as the authorised signatory. 32. It is no doubt correct that the partner of the Firm would not be liable under Section 138 NI Act without the partnership Firm being arraigned an accused, the partners cannot be made vicariously liable for the alleged commission of offence, as held by the Apex Court in the case of Aneeta Hada vs. Godfather Travels and Tours Pvt. Ltd. 2012(2) RCR (Crl.) 854 and Himanshu vs B. Shivmurthy, 2019 (3) SCC 797, but in the present case, though the Notice may not be happily worded but Mr. Ravi Kumar and Ms. Arun Chitra, were issued Notice only as partners of M/s Surya Polymers. To say that there was no Notice given to the partnership Firm would be a hyper technical view and is not tenable. It cannot be said that the Notice technically was not served on the Firm, but it is in fact the Firm, which had been served through two partners. Also, it cannot be overlooked that the Partnership Firm has been arrayed as Accused No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce to meet any outstanding liability for which is not cleared or paid by the person issuing the cheque. 39. In the present case, there is a clear statement that aside from the outstanding amount, there was also VAT tax liability on account of non-submission of 'C' Forms by the Petitioners, payable by the Complainant. 40. The case of the parties is that the business transactions between the parties came to an end in the year 2012 and therefore, whatever was the outstanding liabilities, got crystallised and became payable. The security cheques are intended for this very purpose to satisfy any outstanding amounts, which are not paid by the Petitioners. Therefore, though initially these Cheques may have been given towards security, but were validly utilised towards the amounts that were outstanding from the Petitioners, according to the Complainant. 41. The cheque may have been undated with contents not filled but once a signed blank cheque is given, merely because the contents are filled in subsequently, would not invalidate the cheque, which provides that once the signed blank cheque is given, the drawer cannot subsequently take a plea of the cheques being security cheques. 42. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wly appointed stockists and to settle the account after adjustment of all dues. It was further detailed that there were stocks worth more than Rs. 85,00,000/- approximately and a market outstanding of Rs. 75,00,000/- against an average sale of Rs. 35,00,000/- DLP value. It was admitted that as on date, there was an outstanding amount of Rs. 24,78,136/- on payment of which, the 'C' Forms would be released to the Complainant. 48. Thereafter, the cheque dated27.02.2016 in the sum of Rs. 26,82,324/- was presented on 27.02.2016 and the same got dishonoured. The Legal Demand Notice dated 15.03.2016 was served by the Complainant on Petitioner Nos. 2 and 3 i.e. Mr. Ravi Kumar and Ms. Arun Chitra wherein it was stated that a cheque drawn on Corporation Bank, Indira Nagar Branch, Chennai dated 27.02.2016 in the sum of Rs. 26,82,324/- issued by the Petitioners, has been dishonoured for insufficiency of funds, on presentation. The Petitioners were called upon to deposit the amount within 15 days failing which the Legal action would be initiated against them. 49. In the first Legal Notice dated 21.01.2016, the Complainant had asserted that there was an outstanding liability of Rs. 22,84,348/- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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