An unregistered partnership firm can maintain a complaint under Section 138 of the Negotiable Instruments Act, and the proceedings under Section 138 are not recovery proceedings.

Tarlok Singh Chauhan, J.

Two questions arise for consideration in this appeal:

(i) whether the application filed by the appellant to place on record the partnership deed can be allowed especially after the learned trial Magistrate has acquitted the respondent for the offence punishable under Section 138 of the Act, only on account of the managing partner of the appellant having failed to establish that he was one of the partners of the complainant-firm and duly authorised by it to file the complaint.

(ii) Whether a partner of an unregistered partnership firm can maintain a complaint under Section 138 of the Negotiable Instruments Act.

2. However, before answering these questions, certain facts need to be noticed.

3. The appellant-complainant filed a criminal complaint under Section 138 of the Negotiable Instruments Act (for short NI Act) against the respondent on the allegation that it was a partnership firm having its office at Village Ranghri, Manali and Sh. Aakash Ahuja was a partner of the said firm, who had been duly authorised to present the complaint. It is submitted that the accused/ respondent had purchased construction material i.e. cement, steel etc. from 01.06.2015 to 29.09.2015 from the appellant-firm and having an outstanding liability of Rs.5,00,000/- for which he issued and handed over cheque bearing No.378401 dated 24.9.2015 to the appellant. However, on presentation, the cheque was returned being dishonoured vide memo dated 24.9.2015 with remarks ‘funds insufficient’. Even after issuance and receipt of legal notice dated 8.10.2015, no payment was made by the respondent. Hence, the complaint.

4. On the basis of the preliminary evidence adduced by the appellant, the respondent was summoned by the learned trial Magistrate vide order dated 23.11.2015 and on finding a prima-facie case, notice of accusation was put to the respondent, to which he pleaded not guilty and claimed trial.

5. In support of his case, the complainant-firm examined Aakash Ahuja as a witness and closed its evidence. Thereafter, the statement of the respondent under Section 313 Cr.P.C. was recorded wherein he denied the case of the complainant-firm. However, in defence, respondent did not lead any evidence.

6. As observed above, the learned trial Magistrate dismissed the complaint solely on the ground that Sh. Aakash Ahuja one of the partners of the complainant-firm had failed to prove that he was one of the partners of the complainant-firm and duly authorised by it to file the complaint and acquitted the respondent.

7. Aggrieved by the acquittal, the complainant has filed this appeal alongwith which an application under Section 391 Cr.P.C. being Cr. M.P. No. 464 of 2018 has been filed to place on record the copy of partnership deed. It is vehemently argued by Mr. Maan Singh, learned Counsel for the appellant-complainant that the learned trial Magistrate erred in dismissing the complaint and acquitted the respondent on purely hypertechnical grounds and, therefore, the appeal may be accepted and the judgment of acquittal be set-aside.

8. On the other hand, Mr. Mukul Sood, learned counsel for the respondent would argue that no fault can be found with the order of acquittal passed by learned Court below and even in case the application for leading additional evidence is to be allowed, even then the same is of no avail as admittedly the partnership deed in question is an unregistered one. I have heard learned counsel for the parties and have gone through the records of the case carefully.

9. As already observed above, the following two questions arise for consideration:

(i) whether the application Cr.M.P. No.464 of 2018 filed by the appellant to place on record the partnership deed can be allowed especially after the learned trial Magistrate has acquitted the respondent for the offence punishable under Section 138 of the Act, only on account of the managing partner of the appellant having failed to establish that he was one of the partners of the co