IMPORTANT POINT
Unregistered Partnership Firm cannot have legally enforced debt.

JUDGMENT

A.I.S. Cheema, J.—This is an appeal against acquittal of respondent original accused under Section 138 of the Negotiable Instruments Act, 1881 (“Act” in brief).

2. Facts in brief may be stated as follows:—

(A) The Appellant original complainant (hereafter referred as “complainant”) filed private complaint in the trail Court claiming that the complainant is a registered partnership firm and bad business dealings with Respondent accused. Respondent has purchased battery plates from the complainant and against such transaction, on 18th May 1994 issued two cheques (Exhibit 45, 47), each of Rupees Twelve Thousand. The cheques were presented to Nagar Urban Central Cooperative Bank of the complainant on 16th November 1994. The Bank sent the cheques for collection to Indira Cooperative Bank of the accused. The cheques returned back to the complainant unpaid with memorandum (Exhibit 56) dated 22nd November 1994 reporting insufficient funds. Complainant issued notice (Exhibit 48) on 25th November 1994 through Advocate which was refused (according to the complainant around 30th November 1994). The Complainant filed complaint on 5th January 1995.

(B) On behalf of the complainant, PW1 Kacheswar Chawan was examined. He claimed to be one of the partners and claimed that he had the power of attorney to file complaint and to give evidence. Complainant examined PW2 Pramod Joshi from Nagar Urban Cooperative Bank to prove documents at Exhibit 54, 55 which were registers regarding sending the cheques for collection and their return. The witness proved memo Exhibit 56 relating to dishonour of cheques. Complainant examined PW3 Dole Asaraji from Indira Cooperative Bank, who proved that the cheques were returned unpaid for want of necessary funds.

(C) The Respondent-accused entered the witness box and deposed that she did purchase the battery plates and had issued the concerned two cheques. She stated that when she received the battery plates, they were defective and her customers started making complaints and she deposed that one of the customer made written complaint to her and even claimed compensation from her. She claims that she sent the defective battery plates to the complainant and raised dispute regarding the quality. Her evidence is that the complainant did not respondent for 23 months and so she issued letter to her Bank which is Exhibit 85, regarding stopping of payment.

(D) The evidence from the record of the trial Court shows that PW1 claimed the complainant to be registered partnership firm but this was disputed by the accused. In the cross-examination of PW1 Kacheshwar Chavan also it was suggested to him that the complainant was not a registered partnership firm and that PW1 was not partner of that firm.

(E) The trial Court discussed the evidence and has recorded findings that the complainant had proved that the accused had issued the two cheques and the same were for discharge of debt or liability. Trial Court held that it was proved that the cheques were dishonoured due to insufficient funds in the account of the accused. It also concluded that the notice Dated 25th November 1994 (Exhibit 48) was sent to the Respondent accused on correct address. However, the trial Court found that the complainant had not proved as to on what date the notice was refused, as the envelope had postal seals only Dated 25th November 1994 when the Notice was booked. The trial Court held that the complainant produced copies of the registration of the firm which showed that it was registered only on 14th October 1999, which is during pendency of the complaint. It found that the power of attorney tendered was also not proved. The trial Court held that the complainant failed to prove that prior to 14th October 1999 the complainant was registered partnership firm and that PW1 Kacheshwar Chavan had right to file complaint as a partner of the firm or that he was power of attorney holder. The trial Court referred to Judgment in the matter of Mr. Amit De