M/s. Karthick and Co. vs M/s. Vadivel Sizing and Weaving Mills Private Ltd. and Mr. Saminathan

S. Palanivelu, J.—Complainant is the appellant in this appeal. The appellant has come forward with this appeal challenging the judgment

dated 11.10.2002 by the learned Judicial Magistrate No. I, Tiruppur acquitting the respondents/accused for the offence u/s 138 of Negotiable

Instruments Act. 2. The following are the allegations contained in the complaint filed by the appellant u/s 138 of Negotiable Instruments Act.

1[a] Accused No. 2 is the Director of first accused. They used to purchase goods from the complainant on various dates on credit basis and a sum

of Rs. 3,11,435/- was due for the goods purchased. Accused No. 2, on behalf of Accused No. 1 issued cheques dated 20.03.1999 for Rs.

75,000/-, 30.04.1999 for Rs. 80,000/- and 31.05.1999 for Rs. 77,913/-drawn on Corporation Bank, Tiruppur. Complainant presented the

cheques for collection on 25.08.1999 but they were not honoured and were returned with an endorsement ""insufficient funds"" on 26.08.1999. On

28.08.1999, the complainant issued notice but there was no reply. Hence, the complaint.

The court below, after recording of the complainant questioned the respondent u/s 313 Cr.P.C. as regards incriminating materials available

against the complainant''s case. He denied the liability. After analysing the evidence on record, the trial court has acquitted the respondents/accused

of all the charges. Hence, this appeal.

The point for consideration is -

(i) Whether the complainant has established that it is competent to file complaint since it is an unregistered firm?

(ii) Whether the complaint is lawful?

Point :-

3[a] The learned counsel appearing for the appellant Mr. Ajmal khan would contend that Section 69(2) of the Partnership Act 1942 is not a bar

for an unregistered firm to file private complaint u/s 138 of Negotiable Instruments Act since it is a penal provision which is not to enforce any civil

right nor to recover money, that it is settled law that even an unregistered firm can lay complaint u/s 138 of Negotiable Instruments Act and that

there is a legally recoverable debt.

3[b] Per contra, the learned counsel for the respondent Mr. Mouli would contend that as per Section 69(2) of the Partnership Act, not only the

civil suits but also criminal complaints should not be laid and it is a bar for filing complaint by an unregistered firm, that the complaint was signed by

the Manager of the company on 20.09.1999 and the Power of Attorney in his favour to file complaint, etc. was executed only on 21.09.1999 and

hence on the date of signing, the signatory was not authorised to sign on it and that on any account it could not be stated that there is a legally

enforceable debt. Section 69(2) of the Partnership Act, 1952 goes as follows -

(2) No suit 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.

3[c] The learned counsel for the appellant in support of his contentions placed reliance upon decisions of this Court and various High Courts in

which it is held that even an unregistered firm can lay a complaint. In a judgment reported in 2006 (1) TNLR 534 (Mad) [Jothi Sarees v. Pon.

Murugananatham], this Court has observed that it is needless to say that such argument is available in respect of the civil case and not in respect of

the case under Negotiable Instruments Act with a penal provision under Sec. 138 of Negotiable Instruments Act. The learned Judge has also

culled out an identical opinion rendered by Kerala High Court which is as follows -

In a decision rendered in Abdul Gafoor v. Abdurahiman, (1999) 4 Crimes 98, Kerala High Court has held as follows;

Complaint by partnership firm to the effect of non-registration of firm under Sec. 69 of Partnership Act is applicable only to cases involving civil

rights. It has no application to criminal cases since all partner is competent to represent the firm and give evidence on behalf of firm.

In a judgment reported in CDJ 2009 Assam HC 260 [Datasree Das Baaishnab v. F1 Multimedia Consultants], referring to a Division Bench

decision of Kerala High Court, the learned Judge has reached a conclusion that the criminal prosecution may be initiated by an unregistered

partnership firm and the petition is not hit by Section 69 of the Partnership Act. He has also referred to another Division Bench decision of Andhra

Pradesh High Court. The relevant portion contained in the decision of those High Court are as follows -

(10) Relying on the decision held in the case of Amit Desai vs. M/s. Shine Enterprises and Anr. Reported in [2000 Crl. L.J. 2386], a Division

Bench Judgment of the Andhra Pradesh High Court, the learned counsel appearing for the petitioner has submitted that an unregistered firm cannot

initiate action u/s 138 of NT Act. While deciding the case aforesaid, the Division Bench (supra) differed with the view taken by the Kerala High

Court in the case of Kerala Arecanut Stores Vs. Ramkishore and Sons and Another, and held that the explanation to Section 138 of the NI Act

specifically laid down that the debt or other liability means legally enforceable debt or other liability. It was observed by the Division Bench as

under:- ""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 NI Act.

In the case of Kerala High Court (supra), it was held that a suit by a partner for recovery of money on dishonoured cheques endorsed in favour of

the firm is not a bar.

In 2003 (1) ALD Cri. 121 : 2002 (2) AWC 1783 [Gurcharan Singh v. State of U.P. and Anr.], the Allahabad High Court has observed that a

criminal prosecution is neither for recovery of money nor 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 u/s

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.

In ILR 2003 KAR 4325 [Beacon Industries vs. Anupam Ghosh], the learned Judge has culled out a portion in a judgment of the Hon''ble

Supreme Court and held that non-registration of the firm does not have legal bearing on the criminal case. Following is the decision of the Supreme

Court followed by the learned Judge in the said decision.

In the case of Abdul Gafoor v. Abdur Rehman, 1999 (4) Crimes 1998, the Kerala High Court held that an unregistered firm can prosecute a

complaint u/s 138 of Negotiable Instruments Act and the effect of non-registration of a firm u/s 69 of the Partnership Act is applicable only to a

case involving civil rights.

Further, the Supreme Court in the case BSI Ltd. and Anr. v. Gift Holdings Pvt. Ltd. and Anr., 2000 SC (Cri) 538 has held that:

....A Criminal prosecution is neither for recovery of money nor for enforcement of any security etc. Section 138 of the Negotiable Instruments Act

is a penal provision the commission of which offence entails a conviction and sentence on proof of the guilt conducted criminal proceedings. Once

the offence u/s 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.

Again in the case of Gurcharan Singh v. State of UP and Anr., 2002 (4) Crimes 165, the Allahabad High Court has followed the above said

judgment of the Supreme Court.

If the complainant prefers to recover money by filing a civil suit, he cannot do so in view of the bar contained in Section 69(2) of the Partnership

Act. The learned counsel for the respondents/accused placed reliance upon a Division Bench decision of Andhra Pradesh High Court reported in

Mr. Amit Desai and Another Vs. Shine Enterprises and State, ] wherein it is held that 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 Negotiable Instruments Act.

Excepting the above said decision, most of the High Courts of this country have taken a constant view that the bar u/s 69(2) of the Act is not

applicable to a criminal complaint filed by an unregistered firm. In so far as the decision in Amit Desai''s case (supra), it is based on the explanation

to Section 138 of the Negotiable Instruments Act. It goes as follows -

For the purpose of this Section, ""debt or other liability"" means a legally enforceable debt or other liability

The above said decision has been referred by Assam High Court and it is opined that sub-section (2) of Section 69 of the Partnership Act

debars a suit to enforce a right arising from a contract by or on behalf of a firm against any third party if the firm is not registered under the Act.

The said provision relates to instituting a suit for enforcing a right arising from a contract. This does not debar initiating a criminal prosecution for

launching criminal action as prescribed by the special statute. With those observations, the Assam High Court has deferred with the view

expressed in the case of Amit Desai and agreed with the decision reported in Indrajit Gogoi vs. Auto Sales and Service Station (2008) 3 GLR 440

and in the case of Kerala Arecanut Stores (supra). I follow the decision in BSI Ltd and another by Supreme Court and respectfully agree with the

view taken by this Court in Jothi Sarees and other High Courts in this regard.

In the above circumstances, it is held that even if the complainant remains to be an unregistered firm, it is legally competent to lay complaint u/s

138 of the Negotiable Instruments Act.

Much was said about the competency of the Manager of the complainant firm to maintain the complaint. He signed in the complaint on

20.09.1999. Ex. P.1, it is stated that the Manager signed on 20.09.1999. Below that, in the list of documents, first document is mentioned as

Power of Attorney in favour of the complainant dated 21.09.1999"". Hence, the learned counsel for the appellant would contend that even on

20.09.1999, the partners had intention to join the Manager as their Power of Attorney and on 22.09.1999, the complaint was filed before the

court and at the time of presentation or filing of the complaint, the Manager was a competent power of attorney. But the case totally does not show

that the Manager is a Power of Attorney for the complainant. Before ever he was appointed as power of attorney, he signed the complaint and

hence on the date of signing, he had no authorisation by the partners of the firm to represent the firm in a legal proceedings.

The contents of the power of attorney also shows that for preparing complaints also, they are appointing the manager as their power of

attorney. ""Prepare complaints"" includes the signing of the complaint also. Hence, on the date of signing, the manager had no authorisation to

represent the complainant company and hence the complaint could not be maintained on this account. The complaint is a defective one which could

not be altered by subsequent extension of power of attorney in favour of complainant.

In view of the above, this court is of the view that the complaint is not sustainable and hence there is no ground to disturb the findings of the

court below. The judgment of acquittal passed by the court below has to be confirmed and the appeal is liable to be dismissed. I answer the points

accordingly. In fine, the criminal appeal is dismissed confirming the judgment of acquittal passed by the court below.