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Rajasthan High Court · body

2002 DIGILAW 1297 (RAJ)

Abdul Hameed v. State of Rajasthan

2002-07-25

A.C.GOYAL

body2002
Honble GOYAL, J.–Heard learned counsel for the parties and learned Public Prosecutor. (2). The complainant-respondent No. 2 filed a complaint under Section 138. The Negotiable Instrument Act, 1881 (in short the ``Act 1881) against the accused petitioner in the court of learned Judicial Magistrate No. 1, Jaipur City, Jaipur on 21.4.1992 with the averments that the complainant and the accused constituted a partnership firm under the name of ``Nishat Carpets with effect from 11.5.1989. the firm was engaged in manufacturing of carpets. The complainant invested a sum of Rs. 50,000/- in the month of May, 1989 and this amount was paid to the accused. The business of the firm was running properly, but in October, 1991 the complainant separated himself from this firm and thus the firm stood dissolved. At that time, accounts were settled and a sum of Rs. 64,904/- was found due to be paid by the accused to the complainant. The dissolution deed was executed. Towards the aforesaid liability, a cheque of Rs. 40,000/- was issued by the accused in favour of the complainant on 5.10.1991. This cheque was drawn form the Urban Co-operative Bank Ltd., Adarsh Nagar, Jaipur and was payable to the complainant. It was further averred in the complaint that the accused had requested him to encash the cheque after February, 1992. The complainant presented the cheque through State Bank of Bikaner and jaipur, Gopi Nath Marg, Jaipur for clearance on 12.3.1992. The cheque was dishonored with the remark ``refer to drawer. The complaint served a written notice dated 24.3.1992 by the registered post. The accused received this notice on 26.3.1992, but no payment was made. (3). The learned Magistrate recorded the statement of the complainant under Sec. 200 Cr.P.C. and took cognizance under Sec. 138 of the Act, 1881. (4). The substance of the offence was read over to the accused, who pleaded not guilty. The complainant apart form himself examined PW 2 Kanti Bhushan Sharma and PW 3 Surendra Singh. The accused was examined under Sec. 313 Cr.P.C.. He denied the evidence and stated that the complainant failed to deposit a sum of Rs. 42726/-, belonging to the firm. The accused got himself examined as DW 1. The complainant apart form himself examined PW 2 Kanti Bhushan Sharma and PW 3 Surendra Singh. The accused was examined under Sec. 313 Cr.P.C.. He denied the evidence and stated that the complainant failed to deposit a sum of Rs. 42726/-, belonging to the firm. The accused got himself examined as DW 1. The learned Magistrate No. 7, Jaipur city, jaipur vide judgment dated 15.1.1997 convicted and sentenced the accused under Section 138 of the Act, 1881 for the said offence to undergo nine months simple imprisonment and a fine of Rs. 10,000/-, in default to further undergo three months imprisonment. (5). In criminal appeal No. 44/98 filed by the accused petitioner, the learned Additional Sessions Judge NO. 1, Jaipur City, Jaipur vide judgment dated 31.1.99 maintained the conviction but instead of sentencing the accused with imprisonment, imposed a fine of Rs. 80,000/-, in default to undergo nine months simple imprisonment. It was also directed that out of this amount of Rs. 80,000/-, a sum of Rs. 70,000/- shall be paid to the complainant. hence this criminal revision by the accused petitioner. (6). I have heard learned counsel for the parties. These facts are not in dispute that both accused and the complainant constituted a partnership firm was registered with the Registrar of Firms and the complainant invested a sum of Rs. 50,000/- in this partnership business. It is also not disputed that the accused issued this cheque of Rs. 40,000/- in favour of the complainant and this cheque was dishonored on account of insufficient funds in the bank account which was in the name of this partnership firm. It is also not disputed that the complainant served a notice upon the accused petitioner but he did not make any payment to the complainant. (7). Before coming to the rival contentions, it would be proper to refer the provisions of Section 138, 139 and 141 of the Act, 1881. 138. Dishonour of cheque for insufficiency, etc., of funds in the accounts. (7). Before coming to the rival contentions, it would be proper to refer the provisions of Section 138, 139 and 141 of the Act, 1881. 138. Dishonour of cheque for insufficiency, etc., of funds in the accounts. ``Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid form that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply. (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier. (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him form the bank regarding the return of the cheque as unpaid, and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation : For the purpose of this section, ``debt or other liability means a legally enforceable debt or other liability. 139. Presumption in favour of holder ``It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, or any debt or other liability. 141. Offences by companies. 139. Presumption in favour of holder ``It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, or any debt or other liability. 141. Offences by companies. (1) If the person committing an offence under Section1 38 is a company, every person who, at the time the offence was committed, was in charge of and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub-section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that the had exercised all due diligence to prevent the commission of such offence. (2) Notwithstanding anything contained in sub-section (1), where any offence under this Act, has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any director, manager, secretary or other officer of the company such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation: For the purpose of this section (a) ``company means any body corporate and includes a firm or other association of individuals; and (b) ``director, in relating to a firm, means a partner in the firm. (8). Learned counsel for the accused petitioner mainly raised this contention that this firm was never dissolved. He referred Ex. P7. Ex.P 7 dated 30.3.1992 is reply of the notice Ex.P 4. Ex.P4 notice dated 24.3.1992 was given by the complainant to the accused for the payment of the cheque within 15 days. Vide reply Ex.P7, the accused informed that still the complainant is partner of the firm. Learned counsel next referred Ex. D6. This is true copy of entry in the register of firms under Sec. 67 of the Indian Partnership Act, 1932 (in short the Act, 1932). This Ex.D 6 was issued on 5.9.1994, which contains the names of both partners, i.e. the complainant and the accused. Learned counsel next referred Ex. D6. This is true copy of entry in the register of firms under Sec. 67 of the Indian Partnership Act, 1932 (in short the Act, 1932). This Ex.D 6 was issued on 5.9.1994, which contains the names of both partners, i.e. the complainant and the accused. The learned counsel next referred the statement of the complainant himself recorded during the trial wherein the complainant admitted this fact that in May, 1992 he addressed one letter to the bank to stop the payment from the account of this partnership firm. According to the learned counsel for the accused, thus this firm never stood dissolved. It was next contended by the learned counsel that for dissolution of the firm, it was necessary by the complainant to give a notice in writing and for that he referred Sections 32 and 43 of the Indian Partnership Act, 1932. Reliance is placed upon Banarsi Das vs. Kanshi Ram (1), wherein it was held that in the case of a partnership at will, if one of the partners seeks its dissolution, a notice in writing has to be given mentioning the date form which th firm would stand dissolved. In V.V.P Thangaraju vs. K.V. Perumal Chettiar and Others (2), it was held that a unilateral notice by a partner in a partnership-at-will cannot effectuate the firms dissolution as form an interior date. In M.O.H. Uduman and Others vs. M.O.H. Aslum (3), it was held that deed that partnership will continue till there are tow partners, it is not partnership-at-will. In Asha Ram vs. Ram Chandra and Another (4), it was held that partnership `at will could be dissolved by service of notice in writing under Sec. 43 of the Act, 1932. Per contra learned counsel Sh. Yadav contended that no notice was required in this case as both the partners mutually consented for the dissolution. (9). A partnership can be dissolved only in the mode prescribed by Sections 40 to 44. According to Sec. 40, a firm may be dissolved with the consent of all the partners or in accordance of a contract between the partners. Sec. 41 provides for compulsory dissolution of a firm. Section 42 provides dissolution of a partnership firm on the happening of certain contingencies. Section 43 provides dissolution by notice of partnership-at-will. According to Sec. 40, a firm may be dissolved with the consent of all the partners or in accordance of a contract between the partners. Sec. 41 provides for compulsory dissolution of a firm. Section 42 provides dissolution of a partnership firm on the happening of certain contingencies. Section 43 provides dissolution by notice of partnership-at-will. According to Sec. 43, where the partnership is at will, the firm may be dissolved by any partner giving notice in writing to all the other partner giving notice in writing to all the other partners of his intention to dissolve the firm. Section 44 provides dissolution of partnership firm by the court. In the present case, provision of section 43 of the Act, 1932 are not applicable. It is not in dispute that the firm in question was a a partnership firm at will and such partnership firm can be dissolved by oral consent of the partners in absence of any provision in the partnership deed with regard to its dissolution. the partnership deed is Ex. D1 and clause 6 of this deed provides that the partnership is at will. Therefore is no other provision in this deed with regard to its dissolution. Such mutual consent of partners in dissolution of firm can be expressed or implied. Here in this case, both the courts below have arrived at a concurrent finding that in view of ex.P 8 signed by the accused and addressed to the complainant, it is clear that this firm was dissolved with mutual consent of both the partners and the accounts were finally settled and a sum of Rs. 64904/- including profit was found due payable to the complainant. Therefore, on the basis of the evidence referred by the learned counsel for the accused petitioner, no such conclusion can be drawn that this partnership firm was not dissolved. The provisions of Sec. 32 of the Act, 1932 are also not applicable in this case. According to Section 32 a partner may retire with the consent of all the other partners or in accordance with an express agreement by the partners or where the partnership at will, by giving notice in writing to all other partners of his intention to retire. In the instance case, as stated hereinabove both the partners mutually consented to dissolve this partnership firm and the accounts were settled and a sum of Rs. In the instance case, as stated hereinabove both the partners mutually consented to dissolve this partnership firm and the accounts were settled and a sum of Rs. 64,904/- was found due payable to the complainant. There is no ground to interfere with the concurrent findings of both the courts below on this point. (10). Learned counsel for the accused petitioner next contended that no presumption, as provided by section 139 of the Act, 1881, can be drawn because the cheque in question was not for the discharge of any legally enforceable liability. Reliance is placed upon B. Mohan Krishna vs. Union of India and Others (5), wherein Andhra Pradesh High Court held that the rebuttal presumption under Sec.139 operates only in favour of the payee or holder in due course but not infavour of a person, who, without consideration, because the holder of the cheque. Drawer of the cheque can take the plea that the amount covered by the cheque was not for the discharge of any legally enforceable liability. (11). As stated hereinabove, it is not disputed that this cheque of Rs. 40,000/- was issued by the accused petitioner in favour of the complainant and thus presumption in favour of the holder of the cheque should be drawn under Section 139 of the Act, 1881 that this cheque was for the discharge, in whole or in part, or any debt or other liability. The complainant has discharged his initial burden but the accused petitioner failed to establish that the cheque was issued not of the nature referred to in Sec. 138. Another judgment relied upon by learned counsel for the accused petitioner is also not helpful to him as it was held in Uplanche Mallikarjun and Others vs. Ratkanti Vimala and Another (6), Andhra Pradesh High Court, that there was no claim in the complaint that cheque was issued in discharge of any legally enforceable debt of liability, but this is not the position in that present case. In Shri Taher N. Khambati vs. M/s. Vinayak Enterprises, Secunderabad and Others (7), Andhra Pradesh High Court held that provisions of Section 138 of the Act, 1881 would not be attracted when cheque was issued not voluntarily. (12). Therefore, in view of the entire discussion, I find no merit in this revision petition. Hence this revision petition is, hereby dismissed.