IMPORTANT POINTS
(1) Where cheque was issued on dissolution of un-registered firm by one partner who took over the business of firm to other partner, prosecution for dishonour of cheque would not be barred under Section 69(2) of Partnership Act.
(2) If the consolidated notice is found to provide sufficient information envisaged by the statutory provision and there was a specific demand for the payment of the sum covered by the cheque dishonoured, mere fact that it was a consolidated notice and/or that further demands in addition to the statutorily envisaged demand was also found to have been made may not invalidate the notice.

A.C. Kabbin, J.—Challenging the acquittal of the respondent for the offence punishable under Section 138 of the Negotiable Instruments Act, in judgment dated 15.9.2003 passed by the learned XIII Additional Chief Metropolitan Magistrate, Bangalore in CC No. 30685 of 2001, the complainant of that case has filed this appeal.

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

The accused, the complainant and 4 persons were partners in a firm named Sri. Venkateshwara Finance Corporation. The main business of that firm was money lending. Due to personal problems the complainant and 4 others were forced to retire from the above said firm with effect from 27.6.1998. The accused agreed to continue the business of the firm in his individual capacity and to that extent an agreement was executed between the complainant and the accused along with 4 others on 27.6.1998. As per the agreement the accused agreed to return her capital and hand loan standing at the credit of the complainant as on 31.3.1998 after adjusting the amount due by her to the firm. The amount due to the complainant as on 31.3.1998 was Rs. 1,58,200 being the capital amount and a sum of Rs. 46,800 being the hand loan taken for the purpose of said business. The accused also undertook to pay the sum with interest at the rate of 24% per annum, on or before 31.8.1998 and further agreed to pay the interest at the rate of 36% per annum, till the date of actual payment of the said amount of Rs. 2,05,000. In order to discharge the said legal liability, the accused executed two on demand promissory notes and two consideration receipts dated 27.6.1998 one for a sum of Rs.1,58,200 and another for a sum of Rs. 46,800. However, post-dated cheques as promised were not issued. On repeated requests by the complainant, the accused issued two cheques on 8.6.2001, one for Rs. 1,58,200 and another for Rs. 46,800. On presentation, the said cheques were returned dishonoured with an endorsement ‘insufficient funds’. The complainant issued a legal notice dated 26.6.2001 calling upon the accused to pay the cheque amount and also calling upon him to pay interest. The cover containing the said notice returned on 30.6.2001 as not claimed. The accused neither did comply with the demand nor did he reply to the notice. Hence the cause of action for the complaint arose and this complaint is filed within one month from the date of cause of action.

3. The accused respondent pleaded not guilty and claimed to be tried. The complainant examined himself as PW1. In his examination under Section 313 of Cr.P.C., the accused denied the claim of the complainant. In support of his contention, the respondent examined himself as DW 1. In his evidence, the accused contended that when the finance corporation was wound up, the task of collecting chit amount from those who had stopped paying was entrusted to him and therefore Ex. P2 was executed and though he had not taken any money from the complainant, on the demand by the complainant for issuance of cheques as security, at the instance of other partners and upon their assurance cheques were given along with on demand promissory notes. No witness was examined on behalf of the accused.

4. After hearing arguments from both the sides, the learned trial Judge did not go into the claim of the complainant though observed that Ex. P2 (Agreement), Ex. P3 (Consideration Receipt) and Ex. P4 (On Demand Promissory Note) had been executed by the accused, but went into the question of legality of the partnership firm operating without registration and observing that in view of the provisions of Section 69(2) of Indian Partnership Act, the firm being an unregistered firm, all transactions were illegal. He also observed that oral evidence of PW 1 was not in conformity with the documentary evidence i.e. Exs. P1 to P12 and there were no sufficient materials to presume that the accused issued Exs. P5 and P6 to the complainant voluntarily. He also observed that the debt was not