India - Recent Judgements.
Legal News & Analysis - Asia Pacific - India - Dispute Resolution
15 August, 2019
The issue to be decided before the Hon’ble Supreme Court of India pertained to whether the provisions of Section 148 of the Negotiable Instruments (Amendment) Act, 2018, incorporated by way of Amendment Act No.20 of 2018 in the Act, are applicable to the present case(s) in view of the fact that initial complaint was filed on 15.06.2015 and the amendment had taken place on 02.08.2018, which came into force w.e.f. 01.09.2018? The Hon’ble High Court of Punjab & Haryana, in the impugned order, had dismissed the revision application/s and confirmed the order passed by the Learned Additional Sessions Judge, Panchkula directing the appellants to deposit 25% of the amount of compensation awarded by the learned trial Court considering Section 148 of the N.I. Act, as amended. The Apex Court held that impugned Judgment and Order passed by the High Court did not call for any interference.
The Hon’ble Supreme Court of India upheld the setting aside by the Hon’ble High Court of Bombay of the order of acquittal of the Appellants under Section 138 of the Negotiable Instruments Act, 1981. The Hon’ble High Court convicted the Appellant and directed deposit of an amount of Rs.1,20,000/- within a period of two months. In case of default, the Appellant was directed to undergo imprisonment of one year. The issue to be decided was whether the trial court committed an error in placing heavy burden on the complainant to prove the debt? The Hon’ble Apex Court held that, the High Court rightly reversed the order of acquittal passed by the Learned Trial Court wherein the presumption under Section 138 has not been taken into account. The Trial Court committed an error in placing heavy burden on the Complainant to prove the debt.
The Hon’ble High Court of Madras dismissed a proceeding u/s 138 of Negotiable Instruments Act before Ld. Judicial Magistrate, noting that the complaint was filed against the partner without making the partnership firm a party. The issues pertaining to the said case were as follows: a) Whether an unregistered partnership firm can be brought under the ambit of u/s 141 of the Negotiable Instruments Act? b) Whether in order to maintain a complaint for offence u/s 138 of the Negotiable Instruments Act, a partnership firm must be made as an accused along with the Partner? The Hon’ble Court stated that the there was an inapplicable bar for making an unregistered firm party to proceeding as the word “suit” mentioned u/s 69(2) of the Partnership Act, could not be stretched to criminal prosecutions. The Hon’ble High Court relied on the Apex Court ruling of 2012 in Aneeta Hada v. Godfather Travels and Tours Private Ltd. wherein the court held that a partnership firm can also be brought within the ambit of Section 141 of the Partnership Act, and in these cases the firm must be made as an accused along with other partners in order to maintain a complaint for an offence u/s 138 of the Act. The Hon’ble High Court of Madras has specifically clarified that in a case involving dishonour of cheques in a partnership firm, the complaint should make the partnership firm in question as an accused and not its partners. Therefore, while exercising the powers conferred to it u/s 482 of CrPC, the Hon’ble High Court quashed the criminal proceeding before it.
For further information, please contact:
Manoj Kumar, Partner, Hammurabi & Solomon