IMPORTANT POINT
Unregistered partnership firm can prosecute complaint u/s 138 of Negotiable Instruments Act and effect of non-registration of firm u/s 69 of Partnership Act is applicable only to case involving civil rights.

ORDER

K.A. Mohamed Shaft, J. - This Criminal R.P. is filed by the accused in S.T. No. 11464 of 1993 of the Judicial First Class Magistrate's Court-II. Kozhikode. The accused is the revision petitioner. He was prosecuted for the offence punishable under S. 138 of the Negotiable Instruments Act on the basis of the complaint filed by the 1st respondent. The allegation was that for an amount of Rs. 20,000/- due from the revision petitioner to the 1st respondent, he issued a cheque dated 5-6-1991 to the 1st respondent. When the cheque was presented for encashment, it was bounced. The revision petitioner did not pay the amount in spite of a registered notice intimating about the dishonour of the cheque and calling upon him to pay the amount.

2. The trial court found revision petitioner guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, convicted and sentenced to undergo rigorous imprisonment for three months, by judgp1ent dated 28-2-1996. In Criminal Appeal No. 65 of 1996 preferred by the revision petitioner, the Sessions Court, Kozhikode by judgment dated 30-4-1997 varied the sentence and the revision petitioner was sentenced to pay fine of Rs. 35,000/- instead of the term of imprisonment. The appellate court directed that in the event of realisation of fine amount, Rs. 35,000/- should be paid to the 1st respondent, complainant. The revision is preferred against the judgment in the appeal.

3. The counsel for the revision petitioner submitted that the 1st respondent being an unregistered partnership firm, the above prosecution is not sustainable under Section 69 (2) of the Indian Partnership Act. The effect of non-registration of the Partnership Firm under Section 69 of the Partnership Act is applicable only to cases involving civil rights and it has no application to criminal cases. Therefore, the contention of revision petitioner that the prosecution in this case is not sustainable under S. 69 (2) of the Indian Partnership Act is not acceptable.

4. The counsel for the revision petitioner submitted that the above complaint is filed by one Abdurahiman as the person who is authorised to sue on behalf of the firm under the Partnership Deed. Subsequently the Partnership Deed has been altered and another Abdul Rahiman who has been examined as PWI in this case has been authorised to conduct the case on behalf of the Partnership Firm. Therefore, PW1 is incompetent to give evidence in this case and there in no proper representation of the Partnership Firm. But under the Partnership Act all partners are agents of the Partnership Firm and therefore, every partner is competent to represent the firm and to give evidence on behalf of the firm. Hence this contention of the revision petitioner is also not sustainable.

5. The counsel for the revision petitioner submitted that no amount is due from him to the 1st respondent and that he has not issued Ext. P1 cheque in favour of the 1st respondent in discharge of any legally enforceable debt or liability. In spite of the fact that the revision petitioner denied the issuance of cheque in favour of the 1st respondent, when he was questioned under Section 313 of the Criminal Procedure Code and stated that the cheque should be sent for examination by an expert, the trial court did not send the cheque for examination by an expert, thereby the evidence available to the revision petitioner is shut out by the lower court. When the above contention was raised by the revision petitioner before the appellate court, the appellate court negatived the contention by stating that the accused had not filed any petition before the trial court to send the cheque for examination by an expert and the accused did not enter the witness box to explain the circumstances under which he was given a signed blank cheque leaf to the 1st Respondent. The lower appellate court is not at all justified in negativing the contention of the revision petitioner in this regard. It is not necessary for th