Negotiable instrument act 138
Rushabh
(Querist) 06 April 2015
This query is : Resolved
Hi All,
Can you all please guide me that in negotiable instrument act 138 if any person file case on company and company is having partners. If any one partner is willing to give his ratio of claim amount then he can be safe from imprisonment ?
Anirudh
(Expert) 06 April 2015
NO. You cannot. The entire amount of the cheque is to be paid.
SAINATH DEVALLA
(Expert) 06 April 2015
If the transaction has been done by the company,then all the partners will be held responsible in case of discrepency arising.If he has really filed a case it depends on the contents of the statutory notice.
Rushabh
(Querist) 06 April 2015
And what if there is a lady partner who is housewife and she was not aware of day to day affairs of the business can she get grant from imprisonment ?
Devajyoti Barman
(Expert) 06 April 2015
The non active directors are not liable for 138 proceedings. Only those who are entrusted with day to day proceeding of the company are liable.
Rushabh
(Querist) 06 April 2015
hello can anyone give supreme court judgement on a lady not involved in day to day affairs in partnership firm is not guilty in this case.
Thanking all the members for replying so fast and good. Hartley thankful to all.
SAINATH DEVALLA
(Expert) 07 April 2015
First provide the contents of the deed and mou
Rajendra K Goyal
(Expert) 07 April 2015
Judgement are not provided at this site.
ajay sethi
(Expert) 07 April 2015
If the
drawer of a cheque happens to be a juristic person like a body corporate it
can be prosecuted for the offence under Section 138 of the Act. Now there is
no scope for doubt regarding that aspect in view of the clear language
employed in Section 141 of the Act. In the expanded ambit of the word
``company'` even firms or any other associations of persons are included and
as a necessary adjunct thereof a partner of the firm is treated as director of
that company. 12. Thus when the drawer of the cheque who falls within the
ambit of Section 138 of the Act is a human being or a body corporate or
even firm, prosecution proceedings can be initiated against such drawer. In
this context the phrase ``as well as'` used in Sub-section (1) of Section 141
of the Act has some importance. The said phrase would embroil the persons
mentioned in the first category within the tentacles of the offence on a par
with the offending company. Similarly the words ``shall also'` in Subsection
(2) are capable of bringing the third category persons additionally
within the dragnet of the offence on an equal par. The effect of reading
Section 141 is that when the company is the drawer of the cheque such
company is the principal offender under Section 138 of the Act and the
remaining persons are made offenders by virtue of the legal fiction created
by the legislature as per the section. Hence the actual offence should have
been committed by the company, and then alone the other two categories of
persons can also become liable for the offence
Similar was the position in Katta Sujatha
v. Fertilizers and Chemicals Travancore Ltd. This was a case of a
partnership.’ It was found that no allegations were contained in the
complaint regarding the fact that the accused was a partner in charge of and
was responsible to the firm for the conduct of business of the firm nor was
there any allegation that the offence was made with the consent and
connivance or that it was attributable to any neglect on the part of the
accused. It was held that no case was made out against the accused who was
a partner and the complaint was quashed
Dr J C Vashista
(Expert) 08 April 2015
Very well advised, I agree with the experts.
Parthasarathi Loganathan
(Expert) 22 October 2015
Since it is a partnership account all are jointly and severally liable to discharge the default.
T. Kalaiselvan, Advocate
(Expert) 10 April 2015
