Dismissed

Anwar Qureshi v. Shreela Devi

Delhi HC14 Mar 2017CRL.L.P./145/2017

Case brief

AI extract

What is this about?

This single-bench order dismisses appeals against acquittals in three contempt cases under Section 138 NI Act. The court held that the trial court correctly found that the cheque issue occurred during a partnership dispute before any formal dissolution or legally recoverable liability arose, thus rebutting statutory presumptions.

What did the court decide?

Leave to appeal against acquittal was refused; petitions dismissed. Acquittal of the respondent is reaffirmed.

Anwar Qureshi Vs Shreela Devi — Cheque Dishonour | Delhi HC (2017)

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Signature Not Verified Digitally Signed By:AM UL YA

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CRL.L.P. 145/2017. CRL.L.P. 146/2017 & CRL.L.P. 147/2017

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Facts involved in all the three cases are same, therefore, these petitions are disposed of together.

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By the judgments, all dated 24"" December, 2016, respondent has been acquitted of the offence under Section 138 of the Negotiable Instruments Act (The Act, for short). Petitioner has prayed for grant of leave to appeal against the acquittal of respondent.

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Heard and material placed on record is perused. However, I do not find any perversity in the impugned judgments, inasmuch as, view taken by the trial court is a possible view. As per the petitioner, partnership deed was executed on 21'' November, 2007 with respondent for starting a business in the name and style of M/s. EKTARA, from RZ-381/21, Tuglakabad, New Delhi-110019. Petitioner contributed ^4,54,000/- in partnership business. As per the agreement, respondent was to look after the work of designing and marketing of the products; Within a month, •petitioner realised that .expected results were not forthcoming. Apprehending huge losses, petitioner decided to quit and requested the respondent to dissolve the firm and settle the accounts. Respondent agreed to this request ofpetitioner and issued nine post dated cheques totalling to ^4,54,000/- all drawn on HDFC Bank,

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Vasant Vihar, New Delhi. On presentation, the four cheques bearing no.085482 dated IS^' June, 2008, 085483 dated 30'^ June, 2008, 085486 dated 30^'' July, 2008 and 085487 dated 15"" August, 2008 each for ^50,000/were received back unpaid from the banker, with the remarks Funds Insufficient'. The amounts involved in the cheques were not paid despite service of notice, hence the complaint.

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During the trial, respondent did not dispute her signatures on the cheques. However, she took a defence that the cheques in question were signed by her under the pressure of petitioner. Partnership firm was not formally dissolved. Cheques were not issued to discharge a debt or liability. Respondent alleged that she had given a notice to petitioner for settlement of dispute through an Arbitrator in terms ofthe partnership deed but petitioner did not respond to the notice. Firm was neither dissolved nor the accounts were settled. Respondent also led evidence. She examined Sh. Anil Kumar as DW-1 and Mr. Surya Kishor Jha as DW-2. She herself entered the witness box as DW-3. Respondent placed on record the partnership deed and proved the same as Ex.DW-3/1. Profit and loss account statements of M/s. EKTARA firm as DW-3/4. Letter written to the petitioner thereby invoking arbitration clause was proved as Ex.DW-3/5.

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Trial court has concluded that petitioner had failed to show that the cheques were issued by the respondent to discharge any legally recoverable liability. Trial court has also concluded that no evidence was led by petitioner to show that partnership firm was dissolved. As per clause 11 of the partnership deed Ex.DW-3/1, any partner could have retired from the business after serving three months' notice to the other partner. As per clause 12, disputes, between the partners, arising in the business of the firm, were to be referred to an Arbitrator to be appointed by the partners. Petitioner had failed to lead any evidence to show that any such three months' notice was given by him showing his intention to retire or dissolve the firm. He simply stopped going to the firm. Trial court has also noted that, as per section 43 ofthe Indian Partnership Act, 1932, a partnership firm can be dissolved by a partner by giving a notice in writing to all the other partners of his intention to dissolve the firm. The section further provides that the firm is dissolved from the date as mentioned in the notice and if no date is mentioned, as from the date of communication of notice. Section 32 of the Act further envisages that a partner may retire by giving a notice in writing to all the other partners ofhis intention to retire. Admittedly, no such, notice was given by petitioner. It also envisaged from the evidence that bank

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accounts of the firm were in the joint name of petitioner and respondent and functional till 2013. Thus, plea of dissolution of the firm M/s EKTARA was found to be suspicious. Since accounts were not settled there was no occasion to pay any liability by the firm or its remaining partners to any other partners.

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For the foregoing reasons, it is clear that respondent had succeeded in rebutting the presumptions under Section 139 read with Section 118 ofthe

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Negotiable Instruments Act.

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Petitions are dismissed.

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A.K.

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MARCH 14,2017/dk

Anwar Qureshi v. Shreela Devi

Case brief

What is this about?

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Anwar Qureshi v. Shreela Devi

Case brief

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