SURIYA MOORTHY Vs. B CHANDRADEVI

JUDGEMENT

(1.) The petitioners who are accused 4 and 5 in C.C.No. 313/2000 pending on the file of Judicial Magistrate NO.I, Madurai seek to quash the complaint pending against them for offence punishable under Sec.138 Negotiable Instruments Act. The petitioners are admittedly partners of the 1st accused firm. The 1st accused firm issued two cheques signed by its Managing partner, the 2nd accused and the cheques bounced and hence the complainant lodged a complaint against other partners also along with the firm.

(2.) The learned counsel for the petitioners contends that there is no material in the complaint to hold that the petitioners were also responsible to the firm for the day today conduct of the business of the firm. He would further submit that the complaint does not even say that the petitioners are responsible to the firm for the conduct of the business of the firm. Therefore, according to the learned counsel for the petitioners, Sec.141 Negotiable Instruments Act in letter in spirit is not attracted and therefore, the petitioners cannot be prosecuted and accordingly the proceedings against the petitioners alone has to be quashed.

(3.) The learned counsel appearing for the respondent/complainant submits that since there is no dispute that the 1st accused is a partnership firm and the petitioners are also the partners, the Indian Partnership Act comes to play in the official dealings of the petitioners' firm. He also brings to the notice of this Court Secs.12, 25 and 26 of the Partnership Act. Sec.12 says that every partner has a right to take part in the conduct of the business. Sec.25 says that every partner is liable, jointly with all the other partners and also severlaly, for all acts of the firm done while he is a partner. Insofar as Sec.26 is concerned, it says that for any wrongful act or omission on the part of a partner acting in the ordinary course of the business of the firm, the firm is also liable to the same extent as the partner. In view of these provisions, the learned counsel contends that at this stage, liability of the partners viz., the petitioners cannot be decided and they have to prove before the trial Court that they were not in charge of the affairs of the firm. In support of his contention, he relies on a ruling of the Apex Court reported in KATTA SUJATHA (SMT) VS FERTILIZERS AND CHEMICALS TRAVANCORE LTD AND ANOTHER ((2002) 7 SCC 655), wherein the Apex Court has been pleased to hold thus: "In short the partner of a firm is liable to be convicted for an offence committed by the firm if he was in charge of and was responsible to the firm for the conduct of the business of the firm or if it is proved that the offence was committed with the consent or connivance of, or was attributable to any neglect on the part of the partner concerned".