Section 138
rkdhandia
(Querist) 20 May 2010
This query is : Resolved
Sir,
Husband and wife partnership firm. Only two partners. Wife retired from firm and the firm taken over by husband as proprietorship. But in very short period the husband died. Loans were taken in Partnership firm to whom blank cheques were given by the partner who died. After the death, cases filed u/s 138 on wife also. The dates put on the cheques by lender is the date which is after the death of the partner i.e. as on the presentation of the cheque in bank the partner was not alive. IN partnership deed the husband was working partner and was getting remuneration. The stand taken by wife in cases u/s 138 is (1) She had alaready retired and at the time of offence she was not parter, Deed of retirement is available (2) The cheque is not signed by her and also the date on the cheque is after the death of husband(partner) (3) Even if for sake of argument taken that the firm was in existance and wife not retired, then also on death of the partner the firm automatically dissolved as per SC decision in case of Mohd Laiquiddin vs Kamala Devi 494.CA> No 6933-6934/2002 XIIA ADJD. The lender in the notice admitted that the partner has died and therefore case filed against wife. (4) She was not working partner
Is at the time of congnince itself any defece or case law presented for defece that it is not a fit case under section 138
Thanks
adv. rajeev ( rajoo )
(Expert) 20 May 2010
So many judgements are available there should be an averment who was responsible at the time of conducting the partnership firm business.
Your case is strong enough, you have to prove that there was dissolution of firm and the cheques issued after the death of the husband. got good grounds so contest the case.
rkdhandia
(Querist) 20 May 2010
Thanks
Can u please give some judgements. The issue shold be that the cheque presented after the death of husband ( partner who signed) and only two partners, then the presentation of that cheque it self is not valid. If it is held that it is not valid then question of bouncing and 138 should not come in picture.
Thanks
B K Raghavendra Rao
(Expert) 20 May 2010
Section 138 is applicable only against the drawer of the cheque. If he is dead, his wife could not be proceeded against under this provision. The only other course left for the drawee is to file a money recovery suit and criminal case under Section 138.
rkdhandia
(Querist) 20 May 2010
But the loan was taken in a firm in which the wife was also partner, but she retired before the cheque was presented. The drawee has filed 138 in which he has charged the wife as partner of the firm.
Thanks
