Ni act 138 cheque bounce case
mehmood
(Querist) 18 October 2012
This query is : Resolved
Is there any way to defend NI act 138 cr case for cheque bounce ? If so kindly co-operate me by replying as I and my wife have been facing this case in metropolitant magistrate court though my wife is sleeping partner and she has not signed any cheques given to party all cheque were signed by me only can my wife be exempted permenantely from this cr. case kindly revert back very soon i owuld be hioghly obliged regards
ajay sethi
(Expert) 18 October 2012
your wife is a partner in firm . hence made ana ccused . make an application for exemption until further ords . court may grant your wife exemption
Rajeev Kumar
(Expert) 18 October 2012
Though your wife is a copartner of your firm that's why she has been an accused. You may pray to the court for the exemption of your wife. The court may grant exemption
Advocate Bhartesh goyal
(Expert) 18 October 2012
Your wife is sleeping partner in your firm and has not been indulged day to day business of firm and not signed the cheque than no case is made out against her.File revision petition against the order of cognigence.your wife will be absolved from offence of 138 of N.I.Act.
ajay sethi
(Expert) 18 October 2012
Kerala High Court
Bindu David George vs Malanadu Development Society And ... on 5 December, 2002
Equivalent citations: II (2003) BC 561, 2003 114 CompCas 322 Ker
Author: R R Babu
Bench: R R Babu
JUDGMENT
R. Rajendra babu, J.
1. The first respondent herein, Malanadu Development Society, filed C. C. No. 101 of 2001, before the J. F. C. M. Court-I, Kanjirap-pally, against the first accused Kamadenu Milk and Milk Products, Kuttikattu-kulangara, partnership firm and its three partners alleging commission of an offence under Section 138 of the Negotiable Instruments Act, 1881, as the cheques issued by the second accused, the managing partner of the firm, had been dishonoured due to insufficiency of funds in the account of the firm. The third accused, who was one of the partners of the firm, filed C. M. P. No. 3873 of 2002 stating that she was only a sleeping partner of the firm and she had nothing to do with the issuance of the cheque and the conduct of the business of the firm and as such she should be discharged of the, alleged offence. The court below, after considering the allegations in the complaint, rejected the above prayer. Aggrieved by the above order, the third accused has come up in revision.
2. Heard learned counsel for the revision petitioner, the first respondent and also the learned public prosecutor.
3. The main argument advanced by learned counsel for the petitioner was that the petitioner was only a sleeping partner of the firm and was not responsible for the issue of the cheque and a complaint under Section 138 of the Negotiable Instruments Act would be maintainable only against the firm and also the managing partner who issued the cheque. It was further submitted that the third accused who was not responsible for the issue of the cheque was not liable to be proceeded against under Section 138 of the Negotiable Instruments Act and as such the proceedings initiated against the petitioner will have to be stopped or dropped. Learned counsel for the first respondent-complainant submitted that all the partners of the firm who are responsible for the conduct of the business of the firm are liable to be proceeded against in view of Section 141 of the Negotiable Instruments Act. It was further submitted that by Section 141 of the Act all the partners of a firm who are responsible for the conduct of the business of the firm shall be deemed to have committed the offence and as such all of them can be proceeded for the offence under Section 138 of the Act. Section 141 of the Act reads :
"Offences by companies.--(1) If the person committing an offence under Section 138 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 he 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 neglect on the part of, 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."
4. The Explanation to the above Section 141 says :
"(a) 'company' means any body corporate and includes a firm or other association of individuals ; and
(b) 'director', in relation to a firm, means a partner in the firm."
5. Thus the definition of a company would take in "firm" also in view of the above Explanation. In view of Section 141 the partners who are responsible to the firm for the conduct of the business of the firm as well as the firm are to be deemed to be guilty of the offence under Section 138 of the Negotiable Instruments Act if the cheque issued by the firm is dishonoured due to any of the grounds mentioned in Section 138 of the Act. The proviso to Sub-section (1) of Section 141 would make it clear that the burden would be on the partner to prove that the offence was committed without his knowledge or that he had exercised due diligence to prevent the commission of the offence. In fact that stage would come only if he was made an accused in the case. Thus all the partners of the firm who are responsible for the conduct of the business of the company or firm are to be arrayed as accused and all of them are liable to be proceeded for the offence under Section 138 of the Negotiable Instruments Act. Whether any of the accused is liable to be proceeded against for the alleged offence has to be decided on the basis of the allegations made in the complaint and also on the basis of the sworn statement of the complainant. There was specific allegation in the complaint that the business of the firm was carried on at the relevant time by all the accused who were partners of the firm. In view of the specific allegation that all the accused were responsible for the conduct of the business of the firm, they are liable to be proceeded against for the offence under Section 138 of the Act as all of them shall be deemed to have committed the offence in view of Section 141 of the Act. If the petitioner or any of the partners of the firm who were arrayed as accused were not responsible for the conduct of the business of the firm or they were entitled to the proviso to Section 141(1) of the Act, it was for them to establish the same during trial. In view of Section 141 of the Act wherein it was specifically mentioned that every person who was responsible for the conduct of the business of the company (firm) shall be deemed to be guilty of the offence, the contention of the petitioner that the company as well as the person who issued the cheque for the company alone can be proceeded against under Section 138 cannot be accepted. The above contention is against the specific provision in Section 141. Hence the above argument has only to be rejected. The court below had properly considered the allegations in the complaint and held that accused Nos. 2 to 4 who were responsible for the conduct of the business of the firm were liable to be proceeded against for the offence under Section 138 and I find no reasons to interfere with the above order. Hence this criminal revision petition has only to be dismissed. In the result this criminal revision petition is dismissed.
ajay sethi
(Expert) 18 October 2012
as per above mentioned judgement your wife would be liable . it is for your wife to prove during trial that she was not responsible for day to day management of the firm . she will have to face trial . revision would be dismissed
V R SHROFF
(Expert) 18 October 2012
I recommend Revision, as suggested by Adv Goyal.
It depend upon your Argument and representing the facts to secure order to prove that process issued against wife is illegal, without applying mind of mm.
U hv good chance to get order in your fvr.
Wife is liable in civil, not in criminal act. If she is totally unaware abt transaction as well as cheque, and a pardanashin muslim lady, she will surely be exempted.
