IMPORTANT POINT
An unregistered firm is barred from filing a civil suit, but there is no bar to initiate a private complaint for the offence punishable under Section 138 of the Negotiable Instruments Act.

JUDGMENT

A.C. Kabbin, J.—These two appeals have been preferred by the complainant challenging the acquittal of the respondent for offences punishable under Section 138 of the Negotiable Instruments Act, 1881. Since both these appeals relate to the same parties and the same transactions, this common judgment is being passed in respect of both the appeals.

2. The case of the complainant, in brief, is as under:

“The complainant deals in fabrication and manufacture of containers and other accessories and equipments. The accused 1 is the proprietor of the accused 2, a proprietary concern. The accused 2 deals in agro chemicals. The accused 2 by its proprietor S.C. Shetty placed an order for containers with the complainant and in response to the same, the complainant supplied to the accused materials as per invoices totalling for an amount of Rs.82,384. Towards the payment of the said containers, the accused issued eight cheques. One cheque for Rs.10,000 was encashed and seven cheques were returned un-encashed. The cheque bearing No.062865, dated 26.6.1998 (concerned in C.C.No.30387 of 1999 Criminal Appeal No.868 of 2002) for a sum of Rs.10,000 returned dishonoured with an endorsement ‘insufficient funds’. Despite the legal notice dated 27.7.1998 the respondents having not paid the amount, they have committed an offence punishable under Section 138 of the Negotiable Instruments Act. In respect of other six cheques, namely cheque bearing No.062866, dated 30.6.1998 for a sum of Rs.l0,000, cheque bearing No.062871, dated 4.7.1998 for a sum of Rs.l0,000, cheque bearing No.062872, dated 10.7.1998 for a sum of Rs.l0,000, cheque bearing No.062873, dated 16.7.1998 for a sum of Rs.10,000, cheque bearing No.062874, dated 25.7.1998 for a sum of Rs. 10,000 and cheque bearing No. 062875, dated 30.7.1998 for a sum of Rs. 12,350 (concerned in C.C. No.30240 of 1999 Criminal Appeal No.772 of 2002), since they were dishonoured as per the memo of dishonour dated 8.9.1998, the notice of dishonour was given on 14.9.1998. Though notices were served, the amount not having been paid, the accused has committed an offence punishable under Section 138 of the Negotiable Instruments Act.”

3. In each case, the complainant was examined as PW1. The contention taken by the accused in each case was that blank cheques had been taken by the complainant as security which were later filled by the complainant; and that articles in question not having been supplied to the accused, there was no liability under the cheques. A legal point was raised by the respondent that the complainant partnership firm being an unregistered partnership firm, in view of the provisions of Section 69(2) of the Indian Partnership Act, 1932, no suit could have been filed to recover the amount and consequently, the amounts under cheque were not legally enforceable debt or liability. The learned Trial Judge acquitted the accused respondent on the grounds that:

“(i) The date of service of notice had not been mentioned in the complaint;

(ii) DW1 had denied the version of PW1;

(iii) In the absence of documentary evidence, sole testimony of the complainant was not acceptable;

(iv) That the complainant firm not having been registered under the Partnership Act, the amount due was not enforceable debt or liability.”

Challenging that judgment of acquittal, these appeals have been preferred by the complainant.

4. Smt. M.D. Anuradha, learned counsel for the appellant submits that this is not a claim arising out of a contract, but the cheques having been issued for payment of price of goods supplied, Section 69(2) of the Indian Partnership Act has no application to the present case. As regards the observation of the learned Trial Judge that in the absence of documentary evidence, the sole testimony of PW1 regarding delivery of goods cannot be accepted, she submits that non-delivery of goods to the respondents had to be proved by the accused and not by the complainant, but there is positive material on reco