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TMI Blog2020 (4) TMI 552X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, 1932 ?" 2. In Sai Accumulator Industries, Sangamner Vs. Sethi Brothers, Aurangabad (2016(5) Mh.LJ 936.), the Single Bench of this Court took a view that the complaint filed by an unregistered firm under Section 138 of the Negotiable Instrument Act, 1888 (in short "N.I. Act") is not tenable in law in view of the bar under Section 69(2) of the Indian Partnership Act, 1932 (in short "the Act of 1932"). 3. The learned referral Judge expressed a diagonally opposite view and referred the question for consideration of the larger Bench. 4. Heard Shri R.M. Bhangde, learned counsel for the applicant (original complainant) and Shri V.M. Gadkari, learned counsel for the respondent/accused. 5. Shri Bhangde, learned counsel for the applicant took ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d will be unable to enforce his claims either against third parties or against his fellow partners. One exception to this disability is made - any unregistered partner in any firm, registered or unregistered, may sue for dissolution of the firm. This exception is made on the principle that registration is designed primarily to protect third parties, and the absence of registration need not prevent the disappearance of an unregistered or imperfectly registered firm. Under this scheme a small firm, or a firm created for a single venture, not meeting with difficulty in getting payment, need never register; and even a firm with a large business need not register until it is faced with litigation. Registration may then be effected at any time be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice." 13. The object of introducing Sections 138 to 142 of the N.I. Act vide Amendment Act 66 of 1998 was specifically to enhance the acceptability of cheques in settlement of liabilities by making the drawer liable for penalties in case of bouncing of cheques due to insufficiency of funds in the accounts or for the reason that it exceeds the arrangement made by the drawer. Section 138 of the N.I. Act is applicable only in case the cheque is presented for payment within a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nherent 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 (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heque and its holder. 20. The larger Bench in the case of A.V. Ramanaiah (supra) fortified its view by observing that the bar contained under Section 69 of the Act of 1932 is intended to prevent an unregistered partnership firm to enforce a right arising out of a contract against a third party, and that it is not intended to create any such bar for the purposes of enforcing rights arising out of statutes or for invoking the protection available under any other statute. 21. For the foregoing reasons, we are in agreement with the view expressed by the referral Judge. 22. In such conspectus, our answer to the question referred is as under :- "The prosecution of an accused under Section 138 of the Negotiable Instruments Act, 1888, is not h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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