TMI Blog2020 (4) TMI 552X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, the inherent character of enforceability of the 'right' does not get changed and it would still remain as a right enforceable by law. Once the bar is removed, the remedy would be revived. Moreover, even the plaintiff/unregistered firm can withdraw the suit with liberty to file a fresh one after getting the firm registered and section 14 of the Limitation Act, 1963 would be applicable to such proceedings. Thus, there is no point in stretching the bar which is in the nature of temporary bar to the suit to the complaints under section 138 of the N. I. Act, which is in the nature of penal provision with the object to inculcate faith in banking transactions - The prosecution of an accused under Section 138 of the Negotiable Instruments Act, 1888, is not hit by the bar created by sub-section (2) of Section 69 of the Indian Partnership Act, 1932. The matter be placed before the appropriate Bench. - Criminal Application (Appa) No. 748 of 2018 - - - Dated:- 7-2-2020 - P. N. Deshmukh And Pushpa V. Ganediwala, JJ. For the Applicant : Shri R.M. Bhangde, Advocate For the Respondent : Shri V.M. Gadkari, Advocate JUDGMENT PER PUSHPA V. GANEDIWALA, J. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther liability cannot be recovered by filing a criminal case and when there is a bar of filing a suit by an unregistered firm, the bar equally applies to criminal case. 9. Disagreeing with the ratio in the case of Mr. Amit Desai (supra), the coordinate Bench of the Andhra Pradesh High Court referred the question for consideration of the larger Bench. Accordingly, the larger Bench of the Andhra Pradesh High Court in the case of A.V. Ramanaiah (supra) held that the Division Bench in the case of Mr. Amit Desai (supra) has not laid down a correct law. The larger Bench after discussing various case laws on the point, came to the conclusion that the bar contained under Section 69 of the Act of 1932 would not get attracted for initiating action by or against an unregistered partnership firm for the offence committed under Section 138 of the N.I. Act. 10. Before adverting to answer the question referred, it would be fruitful to reproduce the relevant provisions and the object in bringing these provisions in the statute books. Section 69(2) of the Act of 1932 reads thus:- 69. Effect of non-registration.- (1) XXXX (2) No suit to enforce a right arising from a contract shall b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless- (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eover, even the plaintiff/unregistered firm can withdraw the suit with liberty to file a fresh one after getting the firm registered and section 14 of the Limitation Act, 1963 (in short the Act of 1963 ) would be applicable to such proceedings. On the other hand, for filing a complaint under Section 138 of the N. I. Act, it has to be filed within a period of one month from the date on which cause of action arises. And there is no provision in the Code of Criminal Procedure unlike Rule 1(3) of Order 23 of the Code of Civil Procedure, to withdraw the complaint with liberty to file it fresh after removal of formal defect, so also, Section 14 of the Act of 1963 would not be applicable to the complaints before the Criminal Courts as it is applicable only to the suits or the proceedings before the Civil Courts. 17. In this background, there is no point in stretching the bar which is in the nature of temporary bar to the suit to the complaints under section 138 of the N. I. Act, which is in the nature of penal provision with the object to inculcate faith in banking transactions. The term suit under Section 69(2) of the Act of 1932 must receive its plain and simple meaning. It cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
