A partner of an unregistered partnership cannot file a complaint under Section 138 of the Negotiable Instruments Act without express authority, as per Section 69(2) of the Partnership Act.

JUDGMENT :

(Nisha M. Thakore, J.)

1. Present appeal is under Section 378 of the Code of Criminal Procedure, challenging judgment and order dated 22.12.2016 passed by the learned Principal Senior Civil Judge and Additional Chief Judicial Magistrate First Class, Kalol, in Criminal Case No.2525 of 2015. By the said judgment and order, the learned Magistrate proceeded to record the acquittal of the present respondent – original accused thereby dismissing the complaint preferred by the present appellant under Section 138 of the Negotiable Instruments Act.

2. Brief facts of the complaint as contended by the original complainant is that :

2.1 The complainant – Hiteshkumar Pulin Gupta claims to be a partner of M/s. Ramanand Plastics. It is the case of the complainant that said the partnership firm is engaged in the business of selling woven fabrics and had come in contact with the respondent – accused M/s. Jerum Plastics, who is represented through his authorized person Mr. Prakash Prajapati.

2.2 According to the complainant, the respondent – accused had purchased the goods worth Rs.2,59,29,527/- and till 12.08.2014 had paid an amount of Rs. 2,40,50,000/-. Thus, the outstanding amount of Rs.32,99,415/- with interest was to be realized from the respondent.

2.3 It is further contended that the two cheques bearing Nos.005366 dated 11.03.2015 and 005365 dated 25.06.2015 each of an amount of Rs.5 Lakhs were handed over against such outstanding amount by the respondent – accused, which was drawn in the name of the complainant firm. According to the complainant, the cheque bearing No.005356 was presented for realization after the same was returned back on the ground of insufficient funds. The memo of such return of cheque was issued by the bank dated 29.06.2015.

2.4 Similarly, the cheque bearing No.005366 dated 11.06.2015 was deposited with the concerned bank on 12.06.2015, which had also returned with an endorsement of bank “funds insufficient”. The memo of the returned cheque was issued by the bank on 25.06.2015.

2.5 In such circumstances, the complainant was constrained to issue legal notice on 02.06.2015 addressed to the respondent firm, raising demand for a cheque amount of Rs.10 Lakhs. According to the complainant, the said notice was duly served upon the respondent – accused on 04.07.2015, however, the same was neither responded nor the outstanding was repaid.

2.6 This led the original complainant to lodge the complaint under Section 138 of the Negotiable Instruments Act, before the learned Principal Senior Civil Judge and Additional Judicial Magistrate First Class, Kalol, on 04.09.2015, which was registered as Criminal Case No.2525 of 2015.

3. Upon registration of the aforesaid Criminal Case, verification of the complainant was recorded on 04.09.2015 and having considered the prima facie case of the complainant, the learned Magistrate had proceeded to issue summons upon the respondent – accused. Original complainant had appeared before the learned Magistrate and his plea was recorded. The summary trial was conducted by the learned Magistrate. During the course of trial, various documentary and oral evidence was produced on record by the original complainant. At Exhibit 36, the purshish was filed by the original complainant closing its right to produce further evidence. Ultimately, further statement under Section 313 of the Code of Criminal Procedure, wherein specific defense