Partner's complaint under NI Act S.138 maintainable without partnership deed if accused admits partnership in S.313 statement; trial court cannot dismiss on mere technicality of non-proof. Additional evidence u/s 391 not for filling lacunae.

JUDGMENT :

RAKESH KAINTHLA, J.

1. The present appeal is directed against the judgment dated 15.10.2013 passed by learned Judicial Magistrate First Class, Court No.3, Shimla (learned Trial Court), vide which the complaint filed by the appellant (complainant before the learned Trial Court) was dismissed. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience.)

2. Briefly stated, the facts giving rise to the present appeal are that the complainant filed a complaint against the accused before the learned Trial Court for the commission of an offence punishable under Section 138 of the Negotiable Instruments Act (in short, ‘NI Act’). It was asserted that the complainant is running a business of sanitary and hardware at Kamla Nagar, Sanjauli, Shimla. The accused No.1 is the Managing Director of accused No.2 and is responsible for the affairs of accused No.2. She was known to the complainant. She approached the complainant for supplying goods on credit and assured to repay the amount. The complainant supplied the material to the accused, and the accused issued a cheque of Rs.3,63,670/- drawn on H.P. State Co-operative Bank, Shimla, in favour of the complainant. The complainant presented the cheque on 20.09.2007 and thereafter on 03.10.2007, but the cheque was returned unpaid with the remarks “insufficient funds”. The complainant sent a notice to the accused by means of registered post. The notice was duly served upon the accused. The accused failed to repay the amount. Hence, a complaint was filed before the learned Trial Court for taking action against the accused as per the law.

3. Learned Trial Court found sufficient reasons to summon the accused. When the accused appeared, a notice of accusation was put to her for the commission of an offence punishable under Section 138 of the NI Act, to which she pleaded not guilty and claimed to be tried.

4. The complainant was called upon to produce the evidence, and the complainant examined Malkiat Singh (CW1).

5. The accused, in his statement recorded under Section 313 of Cr.P.C., admitted that Malkiat Singh (CW1) deals in sanitary and hardware items and is a partner in the firm M/s Gee Ess Trading Company. She admitted that she had purchased hardware items in the year 2006. She denied that she had issued the cheque to discharge her legal liability. She stated that three blank signed cheques were obtained by the complainant as security when she had purchased items from him. She made the payment for the items purchased. She initially stated that she wanted to lead the defence evidence, but subsequently made a statement that she did not want to produce any defence evidence.

6. Learned Trial Court held that the cheque was issued in the name of M/s Gee Ess Trading Company and the complaint was filed by Mr. Malkiat Singh, as a partner of the firm. However, no material was placed on record to show that Malkiat Singh is a partner of the firm. He could not maintain the complaint without establishing this fact. Therefore, the complaint was dismissed.

7. Being aggrieved by the judgment passed by the learned Trial Court, the complainant has filed the present appeal asserting that the learned Trial Court failed to appreciate the material pl