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TMI Blog2023 (7) TMI 657X X X X Extracts X X X X X X X X Extracts X X X X ..... te Mr. Sujay Palshikar for the Appellant- Complainant and learned Advocate Shri Indrajeet Joshi for the Respondent No. 1 and learned APP for the Respondent No. 2-State. 3. The Court of the JMFC, Kolhapur has acquitted the Respondent-accused mainly for two reasons :- a) The firm of the Complainant was not registered and as such the complaint for the offence punishable under Section 138 of the Negotiable Instruments Act is not maintainable in view of the bar laid down as per Section 69(2) of the Indian Partnership Act. b) Second ground is the Complainant could not prove the mercantile transaction with the Respondent No. 1. The correctness of the judgment is challenged by the Appellant. Leave was granted on 20/09/2006. Party will be refe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Ismail Patel representative from the Kolhapur Urban Co-operative Bank, being the Banker of the accused page no. 27. (iv) Kapil P. Sharma - The Poclain machine operator. (page no. 32) 7. As against this, the accused examined Jugalkishor Tiwadi, who is owner of the J. K. Construction and he relied upon a notice reply dated 01/06/1999, at Exh.- 45 (page no. 36) Non Registration of the firm 8. There is no dispute that firm was not registered. The learned Magistrate while treating the complaint as not maintainable relied upon a judgment in case of Suraj Prakash Gupta v. State of Jammu & Kashmir 2000, Cr. LJ., 2386. The complaint filed by unregistered firm was held not maintainable (para no. 13). Whereas there is a reliance placed on ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... picture or not and by way of seeing whether it is rebutted by the accused or whether the findings of the trial Court are correct or not. Rebuttal of presumption 12. It is settled law that the presumption can be rebutted by adducing evidence separately or by cross-examining the Complainant. In case of Pankaj Mehra and Anr. Vs. State of Maharashtra and Others (2000) 2 Supreme Court Cases 756, there is observation of the Hon'ble Supreme Court to interpret the meaning of the word "the drawer of such cheque fails to make the payment" and "the drawer refuses to make the payment". Failure to make payment can be for various reasons:- when there is failure to make payment, offence is committed. In nutshell, this failure to make payment has been in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of issuance of the cheque but for different consideration. 16. It is true that accused has not examined the said Bhalerao at whose instance the cheque was issued. He has examined the Jugalkishor Bansilal Tiwari as owner of the J. K. Construction. He has also produced work orders. He has taken on hire the Poclain machine from the Complainant. 17. So on this background, I think the Complainant ought to have been substantiated his contention that in fact he has given on a hire Poclain machine to the accused, this is not plea which is taken by way of after thought while cross-examining the Complainant. This plea was taken while dealing notice reply. 18. On this background, when the avernment in the complaint on page no. 10 and evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as turned down. What is the wording used in clause (c) of Section 138 of the Negotiable Instruments Act is 'failure to make payment'. Now this failure can be for various reason and all are included. Reliance was placed on the provisions of Section 536(2) of the Old Companies Act. It says about payment made after winding up are void. It was not accepted. Because debt does not become unenforceable. 23. Learned Advocate for the Appellant relied upon these observations to contend that Respondent cannot take up a plea that there was no mercantile transaction. This argument is illogical. Because Section 139 of the Negotiable Instruments Act itself say about rebuttal of presumption. It is one thing to say that you cannot take up plea and another ..... X X X X Extracts X X X X X X X X Extracts X X X X
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