V SUNDARAM Vs. L KARUPUSAMY

JUDGEMENT

(1.) This revision has been filed by the petitioner against the order passed by the learned Magistrate in Crl.M.P.No.5274 of 2003 in C.C.No.152 of 2003 on 8.8.2003 in dismissing the discharge petition filed by him.

(2.) The brief facts of the case are as follows: The respondent herein gave a complaint before the Judicial Magistrate No.II, Coimbatore under sections 138 and 142 of the Negotiable Instruments Act against the firm and the petitioner herein. In the complaint it was alleged that the petitioner herein as partner of the firm borrowed a sum of Rs.2,00,000/- from the complainant/respondent on 2.12.2001, that for the said sum he issued a cheque dated 2.12.2002, that when presented for collection the cheque was bounced with an endorsement "Funds insufficient" which was duly informed to the petitioner herein by way of legal notice dated 6.12.2002 calling upon them to pay the amount covered under the cheque, that the petitioner herein sent a reply notice with untenable contentions stating that since he retired from the firm with effect from 1.12.99, he has no connection with the firm and he has no business to issue the cheque mentioned above, that the complainant has got the cheque with the signatures of the petitioner herein by wrong method which the complainant only knows how he got the cheque, and that both the petitioner and the firm have failed to pay the amount covered under the aforesaid cheque within 15 days from 16.12.2002. The complaint was taken on file as C.C.No.152/2003 and pending trial. In the said case the petitioner herein has filed discharge petitioner under section 245 of Cr.P.C., on the grounds that the filing of the complaint against him arraying him as partner of the firm is unsustainable, that he never borrowed any amount much less than two lakhs from the complainant on 12.12.2001 as hand loan for his business purpose, that a deed of retirement was entered into by him on 1.12.99 and the clauses of the same came into force with effect from 30.11.1999 and that as per the said retirement deed all the assets and liabilities of the firm were determined and it was explicitly and categorically arrived that no amounts were payable or receivable from retiring partners. It is also stated by the petitioner that the retirement deed was acted upon and the continuing partners started discharging their obligations as enumerated under the partnership deed. Hence he prayed for discharge. A counter statement was filed by the complainant. Learned Magistrate passed the impugned order on 8.8.2003 dismissing the discharge petition filed by the petitioner herein stating that the question whether the petitioner has retired from the partnership from 01.12.1999 onwards has to be decided only after the trial and also that the signature of the petitioner in the cheque was not in dispute. Aggrieved by the said order, the present revision has been filed.

(3.) Learned counsel for the petitioner would contend that on the date of issue of the cheque which is the subject matter of this case, the petitioner was not partner in the firm and in support of the said contention has produced Form-A dated 29.1.2003 and also the paper publications dated 6.6.2001 made in Indian Express and Dhina Mani. Learned counsel for the petitioner though did not dispute the signature in the cheque, would contend that in as much as the petitioner was not a partner of the firm, he could not be held liable for the liability of the firm and therefore, he should be discharged from the offence alleged against him under section 138 of Negotiable Instruments act. In the Form-A dated 29.1.2003 the name of the petitioner does not find a place. But the borrowal of the amount was on 2.12.2001 and according to the complaint, after repeated demand the petitioner is said to have issued the cheque only on 02.12. 2002 for a sum of Rs.2 lakhs. A perusal of the publication before me in Indian Express and Dhina Mani would show that the firm was reconstituted on 27.11.2000. Section 72 of Indian Partnership Act runs as follows: