S. Palanivelu, J. - (1.) 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 under section 138 of Negotiable Instruments Act. 2. The following are the allegations contained in the complaint filed by the appellant under Section 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.
(2.) THE court below, after recording of the complainant questioned the respondent under Section 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 under Section 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 under Section 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 - 11. 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.
(3.) 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 under Section 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 Song: : AIR 1975 Ker. 144 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.;