Equivalent Citation: 2015ALLMR(Cri)JOURNAL260, I(2015)BC308(Mad.), 2014(5)CTC808, 2014(4)MLJ(Crl)225
IN THE HIGH COURT OF MADRAS
Crl. A. No. 679 of 2009
Decided On: 14.08.2014
Appellants: C. Ponnusamy
Respondent: Chinnamman Constructions
Respondent: Chinnamman Constructions
Hon'ble Judges/Coram:M. Venugopal, J.
Limitation - Condone of delay - Sections 138 and 142 of Negotiable Instruments Act, 1881 and Sections 4 and 24 of Limitation Act, 1963 - Present appeal filed against order whereby, Appellant's complaint against Respondent for offence of dishonor of cheque, was dismissed on ground of delay - Whether delay could be condoned - Held, on record that for filing complaint under Act, 1881 limitation period of one month would start from day on which period of fifteen days from date of receipt of notice by drawer expired - It was well settled that working of Act, 1881 exclude operation of Act, 1963 when criminal liability was fastened in respect of civil liability - Materials on record that there was delay of two days in preferring complaint - No sufficient explanation had been given by Appellant for delay in filing complaint - Therefore, delay could not be condoned - Appeal dismissed. [paras 53, 54 and 84]
1. The Appellant/Complainant has focused the present Criminal Appeal as against the judgment of acquittal in C.C. No. 182 of 2006 dated 02.07.2009 passed by the Learned District Munsif-cum-Judicial Magistrate, Kodumudi.
2. The trial Court while passing the impugned judgment in C.C. No. 182 of 2006 on 02.07.2009 had inter alia observed that the Appellant/Complainant's complaint was barred by limitation, the complaint was not filled fulfilling the requirements of Section 141, the charge in respect of R1/A1, R2/A2 and R3/A4, on the basis of Appellant/Complainant's witnesses and documents were not proved beyond reasonable doubt and found the accused not guilty under Section 138(4) r/w 142 of the Negotiable Instrument Act and acquitted them under Section 255(1) of the Criminal Procedure Code. Since the 3rd Accused had expired, the trial Court held that the charge against him stood abated.'
3. The summary of complaint filed by the Appellant/Complainant: The case of the Appellant/Complainant is that the 1st Respondent/A1 is a Partnership firm doing civil contract works. The Accused 2 to 4 are its partners and responsible for the day to day affairs of the 1st Respondent/A1 firm. The 2nd Respondent/A2 and one S.C. Palanisamy are the partners and authorised signatories of 1st Respondent/A1 firm. On 22.09.2005, the said S.C. Palanisamy on behalf of 1st Respondent/A1 with the knowledge of A2 to A4 borrowed a sum of Rs. 3,50,000/- (Rupees Three Lakhs & Fifty Thousand only) from the Complainant for their urgent business needs and in order to discharge the 1st Respondent/A1 firm's liabilities, the said S.C. Palanisamy on behalf of the 1st Respondent/A1 firm with the knowledge of A2 to A4 issued a post dated cheque on 20.03.2006 bearing No. 655844 for Rs. 3,50,000/- drawn on State Bank of India, Commercial Branch, Erode to the Complainant. The said S.C. Palanisamy died on 22.10.2005 and after his death, the 2nd Respondent/A2 look after the day to day affairs of 1st Respondent/A1 firm with the knowledge of the 3rd Accused (C. Deivasigamani) and the 3rd Respondent/A4. Now, the Accused 2 to 4 are looking after the day to day affairs of the 1st Respondent/A1 firm.
4. The Appellant/Complainant, on 09.09.2006, presented the cheque for encashment through State Bank of India, Kodumudi branch. To the shock and surprise, the said cheque was returned as dishonoured for the reason of 'Funds Insufficient' in the 1st Respondent/A1's Firm Bank Account. The Appellant/Complainant's bank returned the cheque through registered post and the same was received on 19.09.2006 together with return memo dated 11.09.2006 to him.
5. Thereafter, the Appellant/Complainant caused a legal notice dated 28.09.2006 to A1 to A4 calling upon them to repay the said cheque amount of Rs. 3,50,000/- within 15 days from the date of receipt of notice. The 1st Respondent/A1's Firm and the 2nd Respondent/A2 acknowledged the said notice on 30.09.2006 and 3rd Respondent/A4 acknowledged the said notice on 03.10.2006 and the acknowledgment cards were received by the Appellant/Complainant's counsel on 04.10.2006. The 3rd Accused evaded the notice and the notice got returned on 10.10.2006 with an endorsement 'intimated and not claimed'. The 1st Respondent/A1, the 2nd Respondent/A2 and the 3rd Respondent/A4 sent a reply to the Appellant/Complainant's counsel with false allegations. The Accused No. 1 to 4 failed to repay the said cheque amount to the Appellant/Complainant.
6. The 1st Respondent/A1 firm without having sufficient funds in its account, S.C. Palanisamy on behalf of the 1st Respondent/A1 firm with the knowledge of A2 to A4 issued the cheque in question with dishonest intention knowing fully well that it would not be honoured on the date of its presentation and thereby cheated the Appellant/Complainant. As such, A1 to A4 deemed to have committed the offence under Sections 138, 141 and 142 of the Negotiable Instruments Act, 1881 and also, under Section 420 of the Indian Penal Code. The present complaint was filed after the period of 15 days grace period.
7. Earlier, the trial Court recorded the sworn statement of the Appellant/Complainant and on perusal of the documents, took the complaint of the Appellant/Complainant on file under Section 138 of the Negotiable Instruments Act and issued summons to the accused. The 1st Respondent/A1, the 2nd Respondent/A2 and the 3rd Respondent/A4 appeared before the trial Court. Since the 3rd Respondent/Accused had expired, he had not appeared before the Court.
8. On the basis of the accusation levelled against the 1st Respondent/A1, 2nd Respondent/A2 and 3rd Respondent/A4, the trial Court framed the necessary charge in respect of an offence under Section 138 of the Negotiable Instruments Act. The 1st Respondent/A1, 2nd Respondent/A2 and 3rd Respondent/A4 denied the charge framed against them.
9. Before the trial Court, on the side of the Appellant/Complainant/
Prosecution, witnesses P.Ws. 1 to 2 were examined and Exs. P1 to P14 were marked. On the side of the Respondents/Accused, the 2nd Respondent/A2 was examined as D.W. 1 and Exs. D1 and D2 were marked.
10. When the Respondents/Accused were questioned under Section 313 of Cr.P.C. in regard to the incriminating circumstances appearing in evidence against them, they denied their complicity in the offence.
11. The Appellant's Contention:
The Learned Counsel for the Appellant/Complainant contends that the trial Court had committed an error in dismissing the complaint filed by the Appellant/Complainant under Section 138 of the Negotiable Instruments Act, 1881, without proper reference to the facts of the case and the available materials on record.
12. According to the Learned Counsel for the Appellant/Complainant, the trial Court went wrong in shifting the burden of establishing the financial transaction on the Appellant/Complainant in spite of Ex. P1 cheque, dated 20.03.2006 was available on record.
13. Advancing his arguments, the Learned Counsel for the Appellant submits that the trial Court contradicted itself by holding that there was no possibility of the erstwhile partner to have signed the cheque in issued for the purpose of this business after holding in the earlier part of the judgment in C.C. No. 182 of 2006 that Exs. D1 and D2 were not conclusive proof for the dissolution of the partnership.
14. The Learned Counsel for the Appellant projects an argument that the trial Court had failed to appreciate that the case of the Respondents/Accused that the business was wound up was falsified by the fact that they had not closed the account from which the cheque was issued even on the date of trial.
15. The Learned Counsel for the Appellant takes a plea that as per Ex. P13 Partnership Deed, dated 19.11.1997, each of the Partners of the 1st Respondent/A1 firm was empowered to operate the account in question individually.
16. The Learned Counsel for the Appellant contends that the trial Court had not relied upon the partnership deed of the 1st Respondent/A1 firm and applied wrongly the provisions of the Indian Partnership Act, 1932.
17. Expatiating his submission, the Learned Counsel for the Appellant proceeds to take a stand that the trial Court went wrong in observing that the recitals of the cheque appeared to have been written with a different ink from that of the signature without any pleading to that effect even by the Respondents/Accused and without subjecting the cheque in question for any forensic examination.
18. The Learned Counsel for the Appellant contends that the trial Court had erroneously held that the complaint of the Appellant/Complainant was barred by limitation after dismissing the Criminal Miscellaneous Petition filed by him to condone the delay in question.
19. Lastly, it is the submission of the Learned Counsel for the Appellant that the trial Court had committed an error in not drawing an adverse inference from the conduct of the Respondents/Accused in not producing the book of accounts, which would reveal the factum of transaction, in spite of the admission in regard to the maintenance of Books of Accounts.
20. To Lend support to the contention that the trial Court should have condoned the delay of 2 days, the Learned Counsel for the Appellant cites the decision H.M. Namaratha V. Jeyanthi Prakash reported in (2005) 2 DCR 219, whereby and whereunder in paragraph 3, it is observed and laid down as follows:
3. The Complainant/Petitioner herein has filed a complaint under Section 138 of Negotiable Instruments Act against the respondent in respect of bouncing of a cheque. The Trial Court has dismissed the complaint only on the ground of delay of 4 days in filing the complaint. In view of amended provisions of Section 142-B of the Negotiable Instruments Act, taking into consideration, the Petitioner is a woman and has prima facie shown sufficiency of the cause for the short delay, instead of sticking to the technicality, the Court below ought to have condoned the delay and consider the complaint on its merits. Instead of doing so, the Trial Court, in my view, has used short-cut method, which is illegal.
21. The Submissions of the Respondents/Accused:
Per contra, it is the submission of the Learned Counsel for the Respondent/Accused that it was a specific case of the Appellant that on 22.09.2005, S.C. Palanisamy on behalf of the 1st Respondent/A1 firm with the knowledge of A2 to A4 borrowed a sum of Rs. 3,50,000/- from him for their urgent business needs and in order to discharge the 1st Respondent/A1 firm's liabilities. Further, the said S.C. Palanisamy on behalf of the 1st Respondent/A1 (partnership firm) with the knowledge of A2 to A4 issued a post dated cheque dated 20.03.2006 bearing No. 655844 for Rs. 3,50,000/- drawn of State Bank of India, Commercial branch, Erode to the complainant and the said cheque was presented for collection on 09.09.2006 and it was returned on 19.09.2006 with memo dated 11.09.2006 as 'funds insufficient'.
22. The Learned Counsel for the Respondents submits that S.C. Palanisamy died on 22.10.2005 and that, the statutory period of 15 days demand made by the Appellant expired on 15.10.2006. Further, the cause of action arose from 16.10.2006 and lapsed on 14.11.2006(30 days). In this regard, the Learned Counsel for the Respondents contends that the complaint was to be filed by the Appellant/Complainant within the statutory period of one month from the date of cause of action on 16.10.2006(i.e.) on or before 14.11.2006. But, in the present case, the Appellant/Complainant filed the complaint on 17.11.2006 against the 1st Respondent/A1 and 2nd Respondent/A2 which was 33 days from the date of cause of action.
23. The Learned Counsel for the Respondents strenuously submits that the complaint filed by the Appellant/Complainant is unsustainable in law, because of the fact that, the complaint filed by the Appellant/Complainant on 17.11.2006 against the 1st Respondent/Accused firm was barred by limitation and consequently, no cause of action survives against the accused.
24. Yet another plea taken on behalf of the Respondents is that the Appellant/Complainant had not mentioned about the details relating to the fact that A2 to A4 were responsible for day to day affairs of the 1st Respondent/A1 firm at the time of commission of offence and especially, on the date of offence or in otherwise at relevant time. In fact, the Learned Counsel for the Respondents contends that the Complaint of the Appellant merely mentioned that with the knowledge of A2 to A4, S.C. Palanisamy on behalf of A1 firm issued a post dated cheque for Rs. 3,50,000/- and no evidence was available in this regard.
25. The Learned Counsel for the Respondents contends that on the date of cheque Ex. P1 dated 20.03.2006, the 1st Respondent/A1 firm was not in existence and as such, the fastening of criminal liability against the partners of the 1st Respondent firm is not sustainable in law.
26. The Learned Counsel for the Respondents submits that in Ex. P9 reply notice dated 10.11.2006 in paragraph 2 an agreement for dissolution of 1st Respondent/A1 firm with terms of dissolution was stated. Further, it was mentioned that the dissolution came into effect on 01.05.2005. Moreover, in terms of Section 42(c) of the Indian Partnership Act, 1932 subject to contract between the partners, a firm can be dissolved on the happening of certain contingency mentioned therein and in the instant case, on the death of a partner (S.C. Palanisamy died on 22.10.2005), the 1st Respondent/A1 firm got dissolved.
27. The Learned Counsel for the Respondents contends that P.W. 2 (manager of SBI) had deposed that Ex. P1 cheque dated 20.03.2006 was written in two colours of ink.
28. The Learned Counsel for the Respondents cites the decision of this Court Harihar Davey V. Kamlesh Steel Enterprises, a partnership firm, rep. by its Partner, Jaya D. Davey, No. 2, Philips Street, Chennai 1 and others reported in MANU/TN/0787/2005 : 2005(3) CTC 497 and at special page 501, wherein at paragraph 9, it is mentioned as follows;
As per Section 72 of the Partnership Act, a public notice should be given by publication in the official gazette and in at least one vernacular newspaper circulating in the district where the firm to which it relates has its place of principal place of business....
29. Further, in the aforesaid decision of this Court at page 502 & 503, in paragraphs 11 to 13, it is observed as follows:
11. Section 72 of the Indian Partnership Act deals with the mode of giving public notice. It is useful to extract the following passage in J.P. Singhal's Indian Partnership Act, Fifth Edition, appearing at page 1215:
A partnership continues, as to third persons who deal with the members thereof as partners, until due notice of dissolution is given even though as between the partners, the firm has been dissolved prior to such notice, especially as to persons who dealt with the firm or extended credit prior to the dissolution as between partners. Accordingly, each member of a former firm is bound, and continues liable for the acts of any partner within the ordinary scope of the business of the firm, until due notice of such dissolution has been given. But, in case of dissolution by operation of law, notice thereof need not be given, nor is notice necessary where a valid partnership has never existed. Wherever a notice is required by law to be given, it ought to be given in such manner as the law deems sufficient. In India notice is regulated by the Act
12. Under Section 32(3) of the Indian Partnership Act, a retired partner continues to be liable until public notice is given of his retirement and what the public notice under the Act is specified by Section 72. Therefore, on a reading of both the sections, it is clear that a retiring partner will be liable for any subsequent act on behalf of the firm which would bind the firm until the public notice as prescribed by Section 72 is given.
13. Rule 4 of the Tamil Nadu Partnership (Registration of Firms) Rules, 1951 deals with the form of intimation and notices under Sections 61, 62 and 63 of the Indian Partnership Act, which shall respectively be in Forms III, IV, V and VI annexed to these Rules with such variations as circumstances may require. Form No. V, if the form prescribed for giving of notice of change in the constitution or forwarded to the Registrar of Firms for filing under Section 63(1) of the Indian Partnership Act....
30. The Learned Counsel for the Respondents submits that Ex. D1 was the Assessment Order of the Deputy Commissioner of Income-Tax, Circle-II, Erode in respect of the Assessee viz., the 1st Respondent/A1 firm for the Assessment year 2005-2006 and in the said order, it was stated that it was represented that due to loss in business, the business contracts were stopped with effect from 01.04.2005.
31. A perusal of Ex. D1 Assessment Order shows that a balance sum of Rs. 3,89,544/- was to be refunded to the 1st Respondent/A1 firm. Ex. D2 was the letter dated 11.08.2006 of the Inspector of Labour, Erode, addressed to S.C. Palanisamy of the 1st Respondent/A1 firm, wherein it was mentioned that since in the firm no contract works were being performed and also, the Registration Certificate was not renewed, their registration certificate was cancelled.
32. The Learned Counsel for the Respondents cites the decision of this Court S. Raja Saravanan, S/o. S. Devarajan, Pondicherry V. K. Anandarajan, S/o. Kathavarayan, Palavakkam Village, Chennai 41 reported in (2008) 1 MLJ (Crl.) 263, whereby and whereunder, it is observed and held as follows;
The Court is of considered view that the said contention is not applicable to this case. In the context of considering the civil liability of a retiring partner or a partner of a dissolved firm it has been held that in the said decisions that the procedure prescribed under Sections 45, 63 and 72 of the Indian Partnership Act should be complied with. The partnership continues to third parties who deal with the members of the firm as partners until public notice of dissolution is given. Even though as between the partners the firm has been dissolved prior to such notice. But while considering the criminal liability of the retiring partner of the firm or the partner of the dissolved firm under Section 138 of the Negotiable Instruments Act, the main question to be considered is as to whether on the date of issue of cheque and on the date of arising of cause of action such partner was really and actually a partner of the firm or not. Therefore, the said decisions referred to and relied upon by the learned counsel for the respondent cannot be applied to the facts of this case.
33. The Learned Counsel for the Respondents seeks in aid of the decision of the Hon'ble Supreme Court Anita Malhotra V. Apparel Export Promotion Council and another reported in MANU/SC/1323/2011 : (2012) I Supreme Court Cases 520and at special pages 526 & 527 whereby and whereunder in paragraphs 16 to 18, it is observed and held thus:
16) A reading of the above provisions make it clear that there is a statutory requirement under Section 159 of the Companies Act that every Company having a share capital shall have to file with the Registrar of Companies an annual return which includes details of the existing Directors. The provisions of the Companies Act require annual return to be made available by a company for inspection (S. 163) as well as Section 610 which entitles any person to inspect documents kept by the Registrar of Companies. The High Court committed an error in ignoring Section 74 of the Evidence Act, 1872. Sub-section (1) of Section 74 refers to public documents and sub-section (2) provides that public documents include "public records kept in any State of private documents". A conjoint reading of Sections 159, 163 and 610(3) of the Companies Act, 1956 read with sub-section (2) of Section 74 of the Evidence Act, 1872 makes it clear that a certified copy of annual return is a public document and the contrary conclusion arrived at by the High Court cannot be sustained.
17. The annual return dated 30.09.1999 which provides the details about the existing Directors clearly shows that the appellant was not a Director at the relevant time. Had the High Court considered the contents of the certified copy of the annual return dated 30.09.1999 filed by the Company which clearly shows that the appellant herein (A-3) has not been shown as Director of the Company, it could have quashed the criminal proceedings insofar as A-3 is concerned.
18) In DCM Financial Services Limited vs. J.N. Sareen and Another, MANU/SC/7699/2008 : (2008) 8 SCC 1, this Court, while considering Sections 138 and 141 of the Act came to the following conclusion which is relevant for our purpose: (SCC pp. 10-11, para 21)
"21. The cheque in question was admittedly a post-dated one. It was signed on 3-4-1995. It was presented only sometime in June 1998. In the meantime the first respondent had resigned from the Directorship of the Company. The complaint petition was filed on or about 20-8-1998. Intimation about his resignation was given to the complainant in writing by the first respondent on several occasions. The appellant was, therefore, aware thereof. Despite having the knowledge, the first respondent was impleaded as one of the accused in the complaint as a Director in charge of the affairs of the Company on the date of commission of the offence, which he was not. If he was proceeded against as a signatory to the cheques, it should have been disclosed before the learned Judge as also the High Court so as to enable him to apply his mind in that behalf. It was not done. Although, therefore, it may be that as an authorised signatory he will be deemed to be person in-charge, in the facts and circumstances of the case, we are of the opinion that the said contention should not be permitted to be raised for the first time before us. A person who had resigned with the knowledge of the complainant in 1996 could not be a person in charge of the Company in 1998 when the cheque was dishonoured. He had no say in the matter of seeing that the cheque is honoured. He could not ask the Company to pay the amount. He as a Director or otherwise could not have been made responsible for payment of the cheque on behalf of the Company or otherwise. [See also Saroj Kumar Poddar v. State (NCT of Delhi), MANU/SC/0711/2007 : (2007) 3 SCC 693: (2007) 2 SCC (Cri.) 135 Everest Advertising (P) Ltd. v. State, (Govt. of NCT of Delhi) MANU/SC/1767/2007 : (2007) 5 SCC 54: (2007) 2 SCC (Cri.) 444 and Raghu Lakshminarayanan v. Fine Tubes. MANU/SC/7276/2007 : (2007) 5 SCC 103: (2007) 2 SCC (Cri.) 455"
34. Apart from the above, the Learned Counsel for the Respondents cites the following decisions:
(i) In the decision Santhi C. Santhi Bhavan V. Mary Sherly and another reported in MANU/KE/1330/2011 : 2011 ACD 1136 (KER), it is held as follows:
If prosecution proves that accused has made or prepared or created a cheque, which contains an order in writing, under his signature, directing the banker to pay a certain sum of money only to the payee or the bearer or to the order of a certain person, he can be said to have drawn the cheque. Such drawing is also referred to as execution as a legal synonym by various courts and the bar. Therefore, absence of word execution in section 138 is of no consequence. It is also not an excuse not to prove execution/drawing in a prosecution under Section 138. The fact that accused has drawn the cheque, can be proved by any known method recognised by law. The mere production of a cheque or marking the same as an exhibit in a case however, will not prove that the cheque is drawn by the accused. The factum of drawing or execution of cheque has to be proved by evidence of person or persons who can vouchsafe for the truth of the facts in issue. It can be proved by direct or circumstantial evidenced, which is admissible in law. The court must be satisfied from the allegations in the complaint and from the evidence adduced that the cheque was made, prepared or created by accused. The court must be convinced that the order in writing which is found in the cheque was made by accused himself or by some other persons at the instance of accused or under his instructions. Even if such other persons cannot be identified or examined, complainant can still prove execution by circumstantial evidence. There must also be satisfactory evidence to show that accused himself signed the cheque. Then alone, it can be said that accused has drawn the cheque. Issuance and execution are different acts. Proof of issuance or giving of cheque by accused to complainant alone will not suffice to constitute offence under Section 138.(ii) In the decision of the Hon'ble Supreme Court C. Antony V. K.G. Raghavan Nair reported in MANU/SC/0968/2002 : (2003) 1 SCC 1 and at special page 2, it is observed and laid down as follows:
Sitting as an appellate court against a judgment of acquittal passed by the trial court, there was an obligation on the part of the High Court to come to a definite conclusion that the findings of the trial court were either perverse or contrary to the material on record because the High Court could not have substituted its finding merely because another contrary opinion was possible based on the material on record.(iii) In the decision of the Hon'ble Supreme Court Reverend Mother Marykutty V. Reni C. Kottaram and Another reported in MANU/SC/0853/2012 : (2013) 1 Supreme Court Cases 327 and at special pages 331 and 332, in paragraph 11, it is observed and as follows:
Moreover, while hearing an appeal against an order of acquittal, the High Court must express its reasons in the judgment for holding the acquittal to be not justified. If two reasonable conclusions can be reached on the basis of the evidence on record, the appellate court should not disturb the finding of the trial court.
11. In order to appreciate the correctness of the impugned judgment (Reni C. Kottaram V. Mothedr Marykutty, Criminal Appeal No. 1707 of 2007, order dated 17.3.2010 (Ker)) of the High Court, as well as, that of the trial Court, it will be worthwhile to refer to certain conclusions drawn by the learned trial Judge by making specific reference to the various documentary evidence placed before him vis-à-vis the oral version of the complainant himself. The significant admission of the respondent as P.W. 1 was noted by the trial Court as under:
(i) The construction work entrusted with the respondent had to be completed for a total sum of Rs. 78,70,678/- as stated in Exhibit D-3.It was based on the above reasoning that the trial Court ultimately concluded that no offence was made out as against the appellant under Section 138 of the Act in order to convict her under Section 142 of the Act.
(ii) The respondent admitted that he had not completed the work and that he would have got payment only after the measurement of the quantity of the work done.
(iii) All the amounts received from the accused were noted in Exhibit P-9.
(iv) It was admitted that a sum of Rs. 12,60,100/- mentioned in Exhibit D-4 series voucher was not noted in Ext. P-9.
(v) The amount received by him from the accused for conducting earth work was also not included in Ext. P-9.
(vi) The respondent received various amounts by cheques and cash. He, however, denied the suggestion that the accused gave two cheques to one Joychen Manthurthy by way of security on 23.10.2001 while borrowing Rs. 5 lakhs from the said person.
(vii) It was admitted by the respondent that flooring of the building was done by the appellant herself and the expenses were not included in the bill.
(viii) The respondent admitted that he had received Rs. 77,31,500/- as per Ext. P-9 statement while the total amount of work as per Ext. D-3 agreement was Rs. 78,70,678/-.
(ix) The respondent, however, denied the suggestion that excess payments were made by the appellant to him.
(x) The respondent also admitted that he did not complete the work and the flooring was ultimately done by the appellant herself.
(xi) It was not in dispute that the final payment was to be settled only after completion of the work and that the respondent did not complete the work.
(xii) There was no evidence to conclude that any measurement of the work was done and the accounts were settled.
(xiii) As regards the variation in the stand of the appellant, namely, the one in the reply notice and the other in the written statement the same did not materially affect the stand of the appellant in the light of the overwhelming evidence in support of her stand.
(xiv) The fact that the cheque was not in the handwriting of the appellant strengthens the defence version that it was not executed in favour of the respondent.
(xv) There was no reliable documentary evidence adduced by the complainant to hold that a sum of Rs. 25 lakhs was due to him warranting execution of Ext. P-1 cheque.
(xvi) There was no amount legally due to the respondent to hold that Ext. P-1 cheque was as a matter of fact issued by the appellant in favour of the respondent in order to hold that he was a holder of the cheque.
(iv) In the decision of the Hon'ble Supreme Court K. Prakashan V. P.K. Surenderan reported in MANU/SC/8009/2007 : (2008) 1 Supreme Court Cases 258, and at special page 260, it is held as follows:
It is now trite that if two views are possible, the appellate court shall not reverse a judgment of acquittal only because another view is possible to be taken. The appellate court's jurisdiction to interfere is limited.(v) In the decision of the Hon'ble Supreme Court John K. John V. Tom Varghese and another reported in MANU/SC/8039/2007 : (2007) 12 Supreme Court Cases 714 and at special pages 716 and 717, it is observed and laid down as follows:
Relationship between the parties is not in dispute. The complainant is a partner of a firm which is in the business of running chitty fund. The fact that the respondent subscribed three chitties and that he could not pay the instalments of the prized amount is not in dispute. Pendency of three civil suits filed by the firm through the appellant against the respondent is also not in dispute. The High Court upon analyzing the materials brought on record by the parties had arrived at a finding of fact that in view of the conduct of the parties it would not be prudent to hold that the respondent borrowed a huge sum despite the fact that the suits had already been filed against him by the appellant. Presumption raised in terms of Section 139 of the Act is rebuttable. If, upon analysis of the evidence brought on record by the parties, in a fact situation obtaining in the instant case, a finding of fact has been arrived at by the High Court that the cheques had not been issued by the respondent in discharge of any debt, in our opinion, the view of the High Court cannot be said to be perverse warranting interference by us in exercise of our discretionary jurisdiction under Article 136 of the Constitution of India. The High Court was entitled to take notice of the conduct of the parties. It has been found by the High Court as of fact that the complainant did not approach the court with clean hands. His conduct was not that of a prudent man. Why no instrument was executed although a huge sum of money was allegedly paid to the respondent was a relevant question which could be posed in the matter. It was open to the High Court to draw its own conclusion therein. Not only no document had been executed, even no interest had been charged. It would be absurd to form an opinion that despite knowing that the respondent was not even in a position to discharge his burden to pay installments in respect of the prized amount, an advance would be made to him and that too even after institution of three civil suits. The amount advanced even did not carry any interest. If in a situation of this nature, the High Court has arrived at a finding that the respondent has discharged his burden of proof cast on him under Section 139 of the Act, no exception thereto can be taken.(vi) In the decision Smt. Girija V. K. Vinay reported in MANU/KA/0315/2003 : 2004(1) Bankmann 259 (Kar.), and at special pages 261 and 262, in paragraphs 11 and 12, it is held as under.
11. At this stage, it is necessary to mention to the elementary principle of law that the duty of judicature is to act upon the true intention of the Legislature and the function of the Courts is only to expound and not to Legislate. It is also necessary to mention another settled principle of law that the key to the opening of every law is the reason and spirit of law. Another settled principle of law that requires to be recalled is that when the words of statute are clear, plain and unambiguous, the Courts are bound to give effect to the meaning irrespective of the consequences.
12. Keeping in mind these settled principles of law, on careful perusal of the relevant statutory provisions of law, it is clear that the intention of the Legislature was not to make the provision for prosecution the legal heirs of the drawer of a cheque, in the event of dishonour of the cheque. That is the reason, that there are absolutely no statutory provisions under the Negotiable Instruments Act it is needless to say that the provisions of Negotiable Instruments Act are a self-contained enactment and wherever there is lacking, the provisions of the Code of Criminal procedure will have to be pressed into service, As stated earlier, there are absolutely no statutory provisions made under the Negotiable Instruments Act to cover the situation like this. Under the provisions of Section 394 Cr.P.C., it is seen that the said Section deals with the abatement of appeals filed under Section 377 or 378 Cr.P.C. This provision cannot be pressed into service for the reason that the Trial Court or this Court has not been dealing with an appeal under the said provisions. It is also necessary to mention that the provisions of Section 256 Cr.P.C. deals with situation that arise after the death of Complainant. In the case on hand, the drawer of the cheque, ought to be the accused in a proceedings of this nature, had died even earlier to the presentation of the complaint. Such being the case, the provision of Section 256 Cr.P.C. also cannot come to the aid of the complainant. From this aspect, it is clear that the statue law in this regard is totally silent to meet the situation. When this be the intention of the Legislature, the Courts of law will have to interpret the Law, keeping in the mind, the golden rules of interpretation and the Courts should always interpret the laws keeping in view the letter and spirit of law and such an interpretation should advance the purpose of Legislation. It is needless to say that if the Courts do not resort to this exercise the result thereon will not only be irregular and also illegal, so as to vitiate the entire proceedings.
35. Reply Submissions of the Appellant:
The Learned Counsel for the Appellant submits that the issue of limitation ought to be taken up at the earliest point of time and in the instant case on hand, the complaint of the Appellant before the trial Court was filed on 17.11.2006 and sworn statement of the Appellant was recorded by the Learned Judicial Magistrate, Kodumudi on 17.11.2006 and the complaint was taken on file in C.C. No. 182 of 2006 under Section 138 of the Negotiable Instruments Act and summon was permitted to be issued to the accused on payment of process fee and further that, the case was posted to 29.12.2006.
36. The Learned Counsel for the Appellant contends that the Appellant filed C.M.P. No. 1113 of 2009 in C.C. No. 182 of 2006 on the file of the trial Court under Section 5 of the Limitation Act praying for passing of an order to condone the delay of 2 days in filing the complaint and the trial Court, on 29.06.2009, ultimately dismissed the petition inter alia observing that the Appellant/Complainant filed the miscellaneous petition on 09.04.2009, after completion of full trial of the main case and when the matter was pending for passing judgment. Further, the trial Court had also went on to observe that though the Appellant/Complainant had stated that one week prior to 17.11.2006, he had jaundice and therefore, he could not file the compliant in time for establishing the same, he had to produce any document. In effect, the trial Court came to the conclusion that the CMP No. 1113 of 2009 in C.C. No. 182 of 2006 was filed by the Appellant/Complainant very belatedly and also that, the Appellant during his cross-examination came to know that there was delay in filing of the complaint had not chosen to file the application and consequently, opined that the said Miscellaneous Petition could not be permitted to be allowed and dismissed the application.
37. The Learned Counsel for the Appellant submits that if only the trial Court had returned the complaint of the Appellant/Complainant at the earliest point of time, the Appellant/Complainant would have had the necessary opportunity to represent the complaint with a condonation of delay petition and in the instant case, such a thing was not resorted to by the trial Court and therefore, the Appellant/Complainant right to file the delay condonation petition in regard to filing of the complaint was taken away thereby depriving the Appellant/Complainant's legitimate right in this regard.
38. The Learned Counsel for the Appellant contends that even today, the bank account of the 1st Respondent/A1 firm is continuing and as per Section 141 of the Negotiable Instruments Act an offence by ' company' means any body corporate and includes a firm or other association of individuals; and ' director' ' in relation to a firm, means a partner in the firm. Further, it is represented on behalf of the Appellant that the liability of the partners of the 1st Respondent/A1 firm does not cease on the death of S.C. Palanisamy.
39. The Learned Counsel for the Appellant refers to Section 3 of the Limitation Act which speaks of ' Bar of Limitation' and contends that the cumulative effect of Section 3 of 29(2) of the Limitation Act, 1963, is that where a special or local law prescribes for the proceeding a period of limitation different from the provision made in that regard in the Schedule to the Limitation Act 1963 then Section 3 of the Limitation Act shall be applicable as if such period is the period prescribed by Schedule to the Limitation Act 1963.
40. The Evidence of P.W. 1 (Appellant/Complainant)
P.W. 1 in his evidence had deposed that one S.C. Palanisamy obtained loan from him and at the time of tendering the amount, he received only the cheque and he had not received any other documents other than the cheque and that, he had not given loan to any other person and he had not given the loan for interest and he only gave hand loan and in the 1st Respondent/A1 firm, Accused 2 to 4 were partners and that, in the 1st Respondent/A1 firm, the Palanisamy remained as a Managing partner and that he died on 22.10.2005.
41. Further, the evidence of P.W. 1 that till the demise of Palanisamy looked after the day to day activities of the 1st Respondent/A1 firm and this detail was given by the other accused to him and he had not known the death of C. Deivasigamani on 21.10.2006 and the said Palanisamy with the same pen had written the amount and the date in the cheque and it was wrong to state that in Ex. P1 cheque, except the signature, other details were written in different ink.
42. The Evidence of P.W. 2
P.W. 2 (presently serving as Deputy Manager, at Commercial Branch of S.B.I., Erode) in his evidence had stated that Ex. P1 cheque from their bank was issued to the 1st Respondent/A1 firm and the said cheque came into hands of their bank for the purpose of collection and the said cheque was returned owing to insufficiency of funds with a note and the same was Ex. P2 and on 11.09.2006, in the 1st Respondent/A1 firm's account, there was no amount was lying and Ex. P10 is the application form submitted by the 1st Respondent/A1 for opening an account in their bank and Ex. P11 is the letter given by all the partners of the 1st Respondent/A1 firm and the Registered 'E' firm copy was Ex. P12 and the 1st Respondent/A1 partnership deed was Ex. P13 and that, all partners of the 1st Respondent/A1's firm are given the power to indulge monitory transaction separately.
43. It is the evidence of P.W. 2 (in cross-examination) that since the balance amount of the 1st Respondent/A1 firm bank account was 0, in practice, it was to be construed that from the year 2002, the account was closed one.
44. The Evidence of D.W. 1
D.W. 1 (2nd Respondent/A2) in his evidence had stated that the 1st Respondent/A1 firm functioned from the year 1999 till 01.04.2005 and in the 1st Respondent/A1 firm, deceased Palanisamy was one of the partners and that, he died on 22.10.2005 and after his demise, the 1st Respondent/A1 Firm was not reconsidered and since the 1st Respondent/A1 firm had sustained a loans in the business, the partners had decided to dissolve the firm and accordingly, on 01.04.2005 they wrote a 'Dissolution Deed' and the factum of dissolution of the firm and non functioning of the firm were informed to Income Tax, Sales Tax, Labour Office and GPF office through notice and Ex. D1 is the assessment order issued to the 1st Respondent/A1 firm and Ex. D2 was the letter received by the 1st Respondent/Firm from the office of Inspector of Labour and that it was wrong to state that S.C. Palanisamy received a sum of Rs. 3,50,000/- on 20.09.2005 and issued the Ex. P1 cheque. Further, it is the evidence of D.W. 1 that there was no connection between the present case and the 1st Respondent/A1 firm.
It is to be pointed out that a 'Cheque' is a recognised mode of payment and post dated cheques are used in various transactions in daily life. It is to be remembered that a 'post dated cheque' is deemed to be a 'Bill of Exchange' and is not attracted by the provisions of Section 138 to 142 of Negotiable Instruments Act. It becomes a 'Cheque' attracting the provisions of Section 138 of the Negotiable Instruments Act on the date mentioned on the cheque. Further, the aim of a post dated cheque is to provide some accommodation to the 'Drawer of a Cheque.'
46. One cannot forget a vital fact that one of the main ingredients of the offence under Section 138 of the Negotiable Instruments Act, is the return of the cheque by the Bank unpaid. Till the time, the cheque is returned by the bank unpaid, no offence under Section 138 is made out. A post dated cheque cannot be presented before the Bank and as such, the question of its return would not arise. It is only, when the post dated cheque becomes a 'cheque with effect' from the date shown on the face of the said cheque the ingredients of Section 138 of the Act come into operative play in the considered opinion of this Court.
47. In reality, the position of a cheque partly written but signed by the account holder and rest filled up by another is valid as per Section 10 of the Negotiable Instruments Act, 1881. Further, the difference in amount mentioned in words and figures in a cheque, such cheque could not be termed as invalid and the amount stated in words shall be amount undertaken or ordered to be paid as per decision N. Hasainar V. M. Hasainar MANU/KA/0311/2008 : (2009) Crl. L.J. 1213 (Karnataka)
48. Moreover, for the purpose of Section 20 of the Indian Limitation Act, 1908, the cheque is the payment and the date of payment is the date of delivery of cheque. At this stage, this Court points out that no proceeding could be initiated for an offence under Section 138 of the Negotiable Instruments Act on legal heirs of deceased in the event of death of drawal of cheque. After, Death of person issuing cheque process could not be issued against his legal representatives as per decision Savita H. Sorle & Others V. Rajesh Damidar Sarode & Another, AIR 2006 (NOC) 781 (Bom.). Ordinarily, the issue of cheque amounts to a payment unless it is dishonoured as per decision P.K. Muraleedharan V. C.K. Pareed and another MANU/KE/0083/1991 : (1993) vol. 1 Crimes 46(48).
49. There is no prohibition under the Negotiable Instruments Act against post dating cheques. The mere fact that the date of payment of cheque is postponed to a future date, by post dating it does not make the cheque payable otherwise then on demand. It remains a negotiable instruments payable on demand on presentment on or after the date it is made to bearer.
50. At this juncture, this Court relevantly points out that for filing a complaint under Sections 138 & 142 of the Negotiable Instruments Act, 1881, the limitation period of one month would start from the day on which period of 15 days from the date of receipt of notice by the drawer expires as per decision Ms. P.G.M. Spinning Ltd. V. A.P.S.G. Corporation 2000 Bankmann Page 32 (AP).
51. It is to be noted that complaint as defined in Section 2(d) of the Cr.P.C. cannot be equated with application for applicability of Section 5 of the Limitation Act.
52. Further, a bare perusal of Chapter 17 of the Negotiable Instruments Act shows that it does not speak of any application of Section 5 of the Limitation Act as opined by this Court.
53. In fact, the working of Section 138 and 142 of the Negotiable Instruments Act exclude the operation of Section 4 to 24 of the Limitation Act when a criminal liability is fastened in respect of civil liability under the provisions in Section 138 to 142 of the Act, as opined by this Court.
54. Furthermore, the jurisdiction of a Court of Law to take cognizance of an offence under Section 138 of the Negotiable Instruments Act, after expiry of the period of limitation under Section 473 of the Cr.P.C. has no application whatsoever to a proceeding under Chapter 17 of the Negotiable Instruments Act and Section 5 of the Limitation Act is not applicable, in the considered opinion of this Court.
55. It is to be borne in mind that the partners are bound to carry on the business of the firm to the greatest common advantage, to be just and faithful to each other, and to render true accounts and full information of all things affecting the firm to any partner or his legal representative. As a matter of fact, every partner has a right to take part in the conduct of the business. Further, every partner is to attend diligently to his duties in regard to the conduct of the business. Indeed, every partner has a right to have access to and to inspect and copy any of the books of the firm, as per decision of the Hon'ble Supreme Court Rashiklal and Company V. Commissioner of Income Tax MANU/SC/0952/1998 : (1998) 2 SCC at page 49.
56. As per Section 18 of the Indian Partnership Act, 1932, the act of the partner of the firm can well be construed as an act on behalf of all the partners if the circumstances warrant such a conclusion. Also that, an every partner in a trading firm has implied authority to borrow money for the purposes of the business or credit of the firm. However, where a negotiable instrument has been drawn by a partner in his own name, the other partners are not liable on the instrument in the absence of evidence that it was made for and on behalf of the firm as per decision Harbhogwandas V. Narayana AIR 1952 Mys 116.
57. Section 22 of the Indian Partnership Act, 1932, enjoins that in order to bind a firm, by an act or an instrument executed by a partner on behalf of the firm, the act should be done or the instrument should be executed in the name of the firm, or in any other manner expressing or implying an intention to bind the firm as per decision of the Hon'ble Supreme Court Devji V. Magan Lal R. Atharana MANU/SC/0020/1964 : AIR 1965 SC 139 and 140.
58. Furthermore, in a case where after the dissolution of the firm the partner taking over the business signed the invoices for the goods sent to an old customer as the proprietor by scoring out the word 'Partner' it was held that the other members of the dissolved firm were not liable for such subsequent transactions as per decision H. Manjunatha Nayak V. Ullal Dayananda Nayak MANU/KA/0183/1984 : AIR 1984 Kant. 55, P.59.
59. At this stage, this Court aptly points out the decision of the Hon'ble Supreme Court Monaben Ketanbhai shah V. State of Gujarat MANU/SC/0596/2004 : (2004) 7 SCC 15, wherein it is held that the primary responsibility is on the complainant to make necessary averments in the complaint so as to make the accused vicariously liable. It is to be remembered for saddling the criminal liability, there is no presumption that every partner known about the transaction.
60. In fact, the obligation of the partners to establish that at the time the offence was committed they were not in charge of and were not responsible to the firm for the conduct of the business of the firm, would come into operative play only when at first the complainant makes necessary averments/allegations in the complaint and establishes that fact.
61. Moreover, Section 39 of the Indian Partnership Act speaks of 'Dissolution of a Firm'. A deed of dissolution should necessarily deal with matters such as settlement of accounts, payment of amounts found due on such settlement, closing down or continuation of business collection of outstandings fact and payment of liabilities.
62. Mere cessation of the trading activity does not automatically result in dissolution of a partnership firm leaving behind no rights and liabilities unless it was dissolved and accounts settled as per decision of the Hon'ble Supreme Court KPA Vellayappa Nadar V. Bhagirathi Ammal MANU/SC/0996/1997 : (1997) 1 SCC 211.
63. That apart, a dissolution does not necessarily follow because the partnership had ceased to do business, for the partnership may continue for the purpose of realising the assets. In law of partnership, the stoppage of partnership business is one thing and the 'Dissolution of Partnership' is a different one. Even after the dissolution, the business may be carried on, if only for the purpose of just beneficial winding up of the affairs of the partnership, in the considered opinion of this Court. Also that, a firm may be dissolved with the consent of all the partners or in accordance with a contract between the partners.
64. It is to be pointed out that a person dealing with the firm will not be affected by a dissolution of which no public notice has been given, unless they themselves had noticed of such dissolution. Further, Section 45(1) of Indian Partnership Act has twin objects. It aims to protect third parties dealing with him who had no notice of its prior dissolution and (2) it also seeks to protect partners of a dissolved firm from liability to third parties for acts of other partners done subsequent to the dissolution.
65. It cannot be forgotten that the individuals dealing with the firm would not be affected by a dissolution of which no public notice was given, unless they themselves had knowledge of such dissolution. As per Section 46 of the Indian Partnership Act on the dissolution of the firm, the other partner or his representative is entitled as most of the other partners or their representatives to have the property of the firm applied in payment of the debts and liabilities of the firm and to have the surplus distributed according to their rights as per decision Commissioner of Income Tax, Madhya Pradesh V. Dewas Cine Corporation MANU/SC/0140/1967 : AIR 1968 SC 676.
66. It comes to be known that Section 59 of the Indian Partnership Act, 1932 specifies that when the Registrar is satisfied that the provisions of Section 58 have been complied with, he shall record an entry of the statement in the Register of Firms, and shall file the statement.
67. Section 61 of the Act shows that when a registered firm discontinues business at any place or begins to carry on business at any place, such place not being its principal place of business, any partner or agent of the firm may send intimation thereof to the Registrar, who shall make a note of such intimation in the entry relating to the firm in the Register of Firms, and shall file the intimation along with the statement relating to the firm filed under Section 59.
68. At this stage, this Court worth recollects and recalls the decision Chainkaran Sidhakaran Oswal, V. Radhakisan Vishwanath Dixit and others reported in MANU/NA/0006/1954 : AIR 1956 Nagpur 46 (V.43 C.11 Jan.), wherein it is observed as follows:
To operate as a notice for dissolution of a partnership at will under S.43 of the Partnership Act the notice must fulfil the following conditions: (a) The notice must clearly state the intention of the partner giving notice to dissolve the firm; and (b) it must be given in writing to all other partners of the firm. It is only when these conditions are fulfilled that the firm is duly dissolved.
It is a well-established principle of law that a notice under S.43, Partnership Act, for dissolution of a partnership must be in writing, communicated to all other partners and not be ambiguous or vague. It must be factual, explicit and final.
69. Further, it is held that on a consideration of the notices that neither of them was a notice under Section 43, Partnership Act, effecting dissolution of the partnership.
70. Also, in the decision Thummala Rama Rao and others V. Chodagam Venkateswara Rao and others reported in AIR MANU/AP/0102/1963 : 1963 AP Pradesh 154 (V 50 C 54), it is observed as follows:
In order to charge a firm on a negotiable instrument the name of the firm should be clearly stated on the face or on the back of the document so that the responsibility is made plain, and can be instantly recognised as the document passes from hand to hand and in an action on a bill of exchange or promissory note against a person whose name properly appears as party to the instrument, it is not open either by way of claim or defence to show that the signatory was, in reality acting for an undisclosed principal.
Where a promissory note was executed by a managing partner of a firm not on behalf of the firm but in his individual capacity and the recital in the promissory note was to the effect that the money was borrowed for the executant's business, in a suit against the firm and other partners.
71. Further, it is held that on consideration of evidence that the amount was in fact borrowed for his separate business and not for the business of the firm and that on a fair interpretation of the promissory note it could not be inferred that the partnership firm was liable and therefore the partners other than the executant could not be made liable on the note. AIR 1918 PC 146, Foll.
72. Moreover, it is held that even assuming that the amount borrowed had been utilised by the firm it could not be made liable because the executant did not act in a manner expressing or implying an intention to bind the firm. MANU/WB/0225/1923 : AIR 1925 Cal 29, Rel. on.
73. A perusal of Ex. P12 shows that the 1st Respondent/A1 firm was registered in the Registrar of Firm list bearing No. 663/1997 as per Section 58 of the Indian Partnership Act, 1932.
74. A careful scrutiny of the contents of Ex. P13 Partnership Deed dated 19.11.1997 shows that the 1st Respondent/A1 firms Partnership Business shall be that of Formation of Road, Construction of Bridges culvert and other contract works with Government departments on contract basis and any such other business allowable by law as the partners may decide upon from time to time.
75. The capital of the 1st Respondent/A1 Partnership Firm was mentioned as Rs. 25,00,000/- and the said capital was to be distributed by the partners as indicated below:
76. Also that, clause 7 of the partnership deed enjoins as follows:
7. The Accounts of the partnership Firm shall be closed on the 31st March of every year. The Net profit/Loss of the firms profit and loss account shall be appropriated and divided in the following manner:-
77. Added further, clause 9 of the Partnership Deed reads as under: The Bankers of the partnership Firm shall be any schedule or non-schedule or Nationalised banks in Erode, Perundurai and or such other bank at such other place or places as agreed upon among the partners. The Said account or accounts as the case may be shall be operated on behalf of the partnership firm by ALL PARTNERS INDIVIDUALLY.
78. Clause 10 of the Partnership Deed runs thus:
10. Partner Sri. C. Deivasigamani Gounder Partner Sri. S.C. Palanisamy partner Smt. R. Sasikala and Partner S.D. Ramasamy are individually empowered to barrow money from outsiders by way of fixed Deposits, Hundies, Promissory Notes and arrange for any other credit facilities by mortgaging the Assets of the firm from Nationalised banks, Schedule Banks, Non Scheduled Banks and private parties. Partner Sri. C. Deivasigamani Gounder shall be the managing partner of the firm.
79. As far as the present case is concerned, even though the 1st Respondent/A1 Firm had closed its business from 01.04.2005 as made mention of in Ex. D1 assessment order of I.T. Department in terms of Section 61 of the Indian Partnership Act, the 1st Respondent/A1 firm was not closed and no intimation/statement relating to the firm was filed by it before the Register of firms as opined by this Court. It is true that in terms of Ex. P13 Partnership Deed the partners C. Deivasigamani Gounder, S.C. Palanisamy, R. Sasikala and S.D. Ramasamy are individually empowered to borrow money from outsiders by way of fixed Deposits, Hundies, Promissory Notes and arrange for any other credit facilities by mortgaging the assets of the firm from Nationalised Banks, Schedule Banks, Non Scheduled Banks and private parties. Further, the partner C. Deivasigamani Gounder was the managing partner of the firm. Thus, it would be seen that S.C. Palanisamy (partner of the 1st Respondent/A1 firm) in terms of Ex. P13 Partnership Deed was empowered to borrow money from private party like the Appellant/Complainant.
80. A perusal of the contents of the complaint filed by the Appellant/Complainant, unerringly points out that the Appellant/Complainant had merely mentioned that on 22.09.2005 S.C. Palanisamy on behalf of the 1st Respondent/A1 firm with the knowledge of A2 to A4 received a sum of Rs. 3,50,000/- for their urgent business needs and by way of repayment of loan with the knowledge of A2 to A4, the said S.C. Palanisamy gave a post dated cheque dated 20.03.2006 for Rs. 3,50,000/- and after the demise of S.C. Palanisamy on 22.10.2005, A2 to A4 with their knowledge were looking after the day to day affairs of the 1st Respondent/A1 firm. To be more specific, the Appellant/Complainant had not categorically stated in the complaint that either on 22.09.2005 or on that date, when the cheque was deposited for collection and later, when it was returned 'Due to Insufficiency of Funds' at that time, the accused A2 to A4 were in charge of affairs of the 1st Respondent/A1 firm.
81. In regard to Ex. P9 reply advocate notice dated 10.11.2006 issued on behalf of the 1st Respondent/A1 firm and it's partners addressed to the Advocate of the Appellant/Complainant, it is to be pointed out more relevantly that in paragraph 2, it was specifically mentioned that the dissolution came into effect from 01.05.2005 and before that, in April 2005, the 1st Respondent/A1 Firm was dissolved. It is not in dispute that S.C. Palanisamy (Partner with the 1st Respondent/A1 firm) died on 22.10.2005 and Ex. P1 cheque post dated 20.03.2006. In the present case, it is the prime duty of the Appellant/Complainant to establish that S.C. Palanisamy (Deceased Partner) during his lifetime with the knowledge of A2 to A4 had obtained a loan from him. Even on 01.04.2005, the partnership business transactions were stopped and income and expenditure were submitted to the Income tax Department in respect of the 1st Respondent/A1 Firm. If that be the case, it passes beyond once comprehension as to how the deceased S.C. Palanisamy would have obtained a loan from the Appellant/Complainant. In this regard, the Appellant/Complainant had not produced sufficient oral and documentary evidences on his side to establish the loan transactions in issue.
82. A mere running of the eye over the contents of Ex. P9 advocate notice dated 10.11.2006, wherein at paragraph 3, it was mentioned that the partnership of the 1st Respondent/A1 Firm were not in possession of the account books and also, it was denied that the deceased S.C. Palanisamy contracted the loan of Rs. 3,50,000/- from the Appellant/Complainant for the purpose of the 1st Respondent/A1 firm. Added further, it was specifically mentioned that at best the loan was to be treated as a personal loan of the deceased S.C. Palanisamy only. Moreover, C. Deivasigamani then partner of the 1st Respondent/A1 firm also expired during the month of October, 2006.
83. In short, this Court is of the considered view that the Appellant/Complainant had not proved to the subjective satisfaction of this Court that the loan of Rs. 3,50,000/- was obtained by S.C. Palanisamy on 20.09.2005 (during his life time) for the purpose of the 1st Respondent/A1 firm with the knowledge of A2 to A4 and later, issued the post dated cheque in issue on 20.03.2006.
84. Further, the legal notice issued on behalf of the Appellant/Complainant was received by the 2nd Respondent/A2 for himself and for on behalf of the 1st Respondent/A1 on 30.09.2006 as seen from Ex. P5 and P6 acknowledgment cards. In terms of Section 138 of the Negotiable Instruments Act, 1881, the accrual of cause of action for filing of the complaint arises from the date of service of notice on the accused. In terms of Section 142 of the Negotiable Instruments Act, from the date of accrual of cause of action within 30 days, the Appellant/Complainant had to prefer the complaint. In the present case, the cause of action had arisen on 15.10.2006. Before 15.11.2006, the Appellant/Complainant ought to have filed the complaint before the trial Court. Unfortunately, he had filed the complaint in C.C. No. 182 of 2006 on the file of the trial Court on 17.11.2006. In effect, there was a delay of 2 days in preferring the complaint. Only, when the main case arguments were heard and when it was posted for judgment at that time only criminal M.P. No. 1113 of 2006 in C.C. No. 182 of 2006 was filed on behalf of the Appellant/Complainant before the trial Court praying for permission to that Court to condone the delay of 2 days in question. Very rightly, the trial Court had dismissed the Miscellaneous Petition as a belated one. To put it succinctly, the complaint filed by the Appellant/Complainant in C.C. No. 182 of 2006 on the file of the trial Court under Section 138 & 142 of the Negotiable Instruments Act, 1881, was barred by limitation. Consequently, the Criminal Appeal fails.
In the result, the Criminal Appeal is dismissed. Consequently, the judgment of the trial Court in C.C. No. 182 of 2006 dated 02.07.2009 is affirmed by this Court for the reasons assigned in this Appeal.