An unregistered partnership firm can file a complaint under Section 138 of the Negotiable Instruments Act, as Section 69(2) of the Indian Partnership Act does not bar such filings.

ORDER :

1. Since in both these applications seeking Special Leave to Appeal filed under Section 378(4) of the Code of Criminal Procedure involves similar set of facts between the same parties raising similar question of law, both these applications are heard and decided by this common order.

2. In Criminal Miscellaneous Application No.3045 of 2023 , the original complainant- present applicant seeks permission of this Court to prefer appeal against the impugned judgment and order dated 30.04.2022 passed by the learned Additional Judicial Magistrate, Vadodara in Criminal Case No.1323 of 2013.

2.1. Similarly in Criminal Miscellaneous Application No.3089 of 2023, the original complainant- present applicant seeks permission of this Court to prefer appeal against the impugned judgment and order dated 30.04.2022 passed by the learned Additional Judicial Magistrate, Vadodara in Criminal Case No.1324 of 2013.

2.2. By the aforesaid impugned judgment and order, the learned Magistrate has proceeded to record acquittal of the present respondent- original accused for the offence alleged under Section 138 of the Negotiable Instruments Act.

3. In brief the facts as emerged on record is that;

3.1. The appellant is an unregistered partnership firm. The respondent accused is engaged in the business of extending services in the name of Super Hospitality Services Private Limited and applicant is engaged in wholesale business of grains. It is the case of the original complainant -partnership firm that because of the business relationship the parties were known to each other since last five years. The complainant firm used to provide goods on credit. Initially, the respondent - accused used to make regular payment of the purchased goods in time, however, since year 2010-11 to 2011-12, the respondent- accused had failed to make payment of the goods taken on credit and the complainant had raised the recovery of such amount of Rs.4,10,708/- from the respondent accused.

3.2. Against such outstanding amount, the respondent-accused had handed over eight cheques of State Bank of India, Alkapuri Branch, Vadodara between the period 22.10.2012 to 22.11.2012. The details of such cheques are as under:

3.3. The aforesaid cheques were drawn by the respondent no.1 in his capacity as Director of the Super Hospitality Services Private Limited Company. It is further contended by the complainant that the aforesaid cheques were presented for realization of the outstanding amount. However, cheque bearing no.187628, dated 20.11.2012 for an amount of Rs.50,000/- was returned back. Similarly, cheque bearing no.187629, dated 22.11.2012 for an amount of Rs.50,000/- and cheque bearing no.187630, dated 22.11.2012 for an amount of Rs.59589/- were also returned back on 23.11.2012. The return of of such cheques were reported by the concerned Bank by its communication dated 24.11.0212. Thus, the complainant was constrained to raise demand of the aforesaid outstanding amount of three cheques by sending legal notice dated 10.12.2012 by registered Post AD upon the respondents- accused.

3.4. According to the complainant, the aforesaid legal notice though duly served as evident from the acknowledgment slip received by the complainant on 5.12.2012 with an endorsement of 10.12.2012 by the accused, the accused has chosen not to make payment of aforesaid outstanding amount. The complainant had, therefore, approached the Court of learned Additional Judicial Magistrate, Vadodara by lodging complaint under Section 138 of the Negotiable Instruments Act on 10.01.2013. The afore