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TMI Blog2002 (5) TMI 877X X X X Extracts X X X X X X X X Extracts X X X X ..... at the firm (M/s. Sterling Novelty Products) supplied brass wares and textiles to the accused persons which were duly received by them. Towards payment thereof, they issued post dated cheque No. 001530 dated 15.2.1999 of worth $ 85,959.20 and No. 001531 dated 15.3.1999 of worth $ 84,208.80 Canadian Dollar. Both the aforesaid cheques were issued by Gurcharan Slngh, the petitioner as President of M/s. International Gifts Ltd. The complainant presented the cheque No. 001530 dated 15.2.1999 with its banker Indian Overseas Bank, Moradabad and the same was sent to Bank of Montreal, Canada. The cheque was dishonoured and returned unpaid since the accused intimated his banker to stop payment. Similarly the other cheque No. 001531 dated 15.3.1999 which complainant deposited with in banker, Indian Overseas Bank, Moradabad was dishonoured on the very same ground. The complainant then served notice upon the accused as provided in the Act asking for payment of the amount covered under both the cheques within fifteenth days of the date of receipt of the notice. As the accused failed to make payment, the present complaint was filed. However, after filing of the complaint, the amount covered under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Sterling Novelty Products being not a registered firm cannot maintain criminal case and that the complaint was not a properly constituted one since the vakalatnama so filed does not bear the signature of the complainant. To this, complainant replied by way of affidavit denying the allegation and urged that the firm is a registered firm and that complaint was filed by one of the partners, a minor through his natural guardian. 4. Sri R.R. Singh, learned counsel for the petitioner at the commencement of the argument raised three contentions that the complaint so filed was not a properly constituted one is asmuch as, vakalatnama filed in the Court is an unsigned one, that the petitioner was not liable to pay the amount covered under the cheque in question, for the goods supplied were sub-standard and that M/s. Sterling Novelty Product being not registered firm under the Partnership Act cannot maintain the criminal proceeding. He, however, confined his argument as to the maintainability of the criminal proceedings, in support whereof he relied upon a decision of the Andhra Pradesh High Court in case of Mr. Amit Desai and Anr. v. Shine Enterprises and Anr., 2000 Cri LJ 2386. 5. Sri S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmissible period of fifteen days of the receipt of the notice, respondent-firm through one of its partner filed complaint on 18.6.1999 which is within the period of limitation as prescribed under Section 142 of the Act. In that view of the matter, the sole question posed is whether, assuming the contention of the petitioner that the respondent-firm is not a registered one, the criminal proceeding would be maintainable in view of the bar created by Section 69(2) of the Partnership Act. Before proceeding to answer the said question, it may be noted that the petitioner's assertion that the respondent-firm is unregistered one has been stoutly denied and disputed. It is affirmatively pleaded that the firm is a registered firm. 7. To appreciate the submission, the relevant part of Section 69 of the Partnership Act necessary for the purpose is extracted hereunder : "69. Effect of nonregistration.- (1) xxxxxxxxxxxxxx (2) No suits to enforce a right arising from a contract shall be instituted in any Court by or on behalf of a firm against any third party unless the firm is registered and the persons suing are or have been shown in the Register of Firms as partners in the firm. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (supra) a Division Bench of Andhra Pradesh High Court has taken the view that the firm being not registered under the Partnership Act cannot maintain a complaint under Section 138 of the Act. No discussion on point of law involved was made by the learned Judges except referring to Section 69 of the Partnership Act and some decisions of the Apex Court. While disagreeing with the view taken by the Kerala High Court that Section 69(2) of the Partnership Act is applicable only where civil rights are invoked, the learned Judges referred to Explanation to Section 138 of the Act and observed "enforcement of legal liability has to be in the nature of civil suit because the debt or other liability cannot be recovered by filing a criminal case and when there is a bar of filing a suit by unregistered firm, the bar equally applies to criminal case as laid down in Explanation (2) of Section 138 of the Negotiable Instruments Act". A Division Bench of the Kerala High Court in the case of Kerala Arecanut Stores v. Ramkishore and sons and Anr. AIR 1975 Ker 144, having made reference to various provisions of the Act regarding rights/obligations arising out of a negotiable instrument observ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for enforcement of any security etc. Section 138 of the Act is a penal provision the commission of which offence entails a conviction and sentence on proof of the guilt in duly conducted criminal proceedings. Once the offence under Section 138 is completed, the prosecution proceedings can be initiated not for recovery of the amount covered by the cheque but for bringing the offender to penal liability. 11. In view of discussions made above, I would hold that even accepting the contention of the learned counsel for the petitioner that M/3. Sterling Novelty Products is not a registered firm under the Partnership Act, yet the bar created by Section 69 of the said Act has no application for maintaining a criminal proceeding under Section 138 of the Act. In that view of the matter, no interference is called for in the criminal proceeding (Case No. 852/9 of 1999) pending against the petitioner in exercise of inherent power. 12. In the result. Criminal Misc. Application fails and the same is dismissed. 13. The court below is directed to take up expeditious hearing and dispose of the case within reasonable time preferably within a period of six months from date of receipt of this judgm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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