IMPORTANT POINT
(1) Section 69(2), Partnership Act clearly shows that an unregistered partnership firm is barred from filing a civil suit and there is no bar as such to file a private complaint and it is purely criminal liability on the part of the person who has issued the cheque.
(2) Section 138, Negotiable Instruments Act is a penal provision, the commission of which offence entails a conviction and sentence on proof of the guilt in duly conducted criminal proceedings.

Since the issues involved in all the captioned applications are the same and the question of law raised is also common, those were heard analogously and are being disposed of by this common judgment and order.

2. It appears from the materials on record that three criminal cases have been registered against the applicants herein for the dishonour of the cheques, punishable under Section 138 of the Negotiable Instruments Act (for short, ‘the NI Act’). The three cases are going on before the learned Additional Chief Metropolitan Magistrate and Special Negotiable Court No.30, Ahmedabad, and are at the final stage.

3. It also appears that the accused persons failed to remain present before the trial Court and their right of cross-examination of the complainant was also closed.

4. The principal argument of Mr. Mangukiya, the learned counsel appearing for the applicants, is that the complaints under Section 138 of the NI Act should be quashed because they are not maintainable in law. According to the learned counsel, the complaints have been filed by an unregistered partnership firm through one of its partners.

5. It is submitted that an unregistered partnership firm cannot file a complaint for the dishonour of a cheque under Section 138 of the NI Act. The submission is that the transaction for the purpose of Section 138 of the NI Act should be one relating to a legally enforceable debt or other liability. Under Section 69(2) of the Partnership Act, the complainant, an unregistered partnership firm, could not have legally enforced the debt. In support of his submissions, reliance has been placed on a decision rendered by the Bombay High Court in the case of Sai Accumulator Industries Sangamner v. M/s. Sethi Brothers Aurangabad (Criminal Appeal No.426 of 2003, decided on 22nd April 2016). In the said case, the appeal was filed by the original complainant against the acquittal of the accused under Section 138 of the NI Act. While dismissing the appeal and affirming the acquittal, the learned Single Judge of the Bombay High Court observed as under :-

“9. Perusal of Section 138 of the Act shows that it has to be a transaction which relates to legally enforceable debt or other liability. It is quite clear that under Section 69(2) of the Partnership Act, the complainant, unregistered partnership could not have legally enforced the debt. If being unregistered partnership it cannot legally enforce the debt, it is not legally enforceable debt and would go out of the purview of Section 138 of the N.I. Act. When complaint was filed complainant was not a registered partnership and thus could not have, at that time, filed the complaint. In this view of the matter, the reasonings recorded by the Hon'ble High Court in the matter of Mr. Amit Desai, supra, appear to be apt for consideration of the present matter. Adopting the said view in the matter of Mr. Amit Desai, supra, I find that the trial Court did not err while rejecting the complaint and acquitting the accused. I do not find myself persuaded by the Judgments in the matter of Abdul Gafoor and Gurcharan Singh (supra). There is no reason to interfere in the acquittal recorded by the trial Court, which is possible view of the matter.”

6. Mr. Mangukiya also placed reliance on a Division Bench decision of the Andhra Pradesh High Court in the case of Amit Desai v. M/s. Shine Enterprises, reported in 2000 Cri.L.J. 2386. He relied on the observations made by the Court in paragraphs 14 and 15, which read thus :-

“14. We have gone through the entire judgment and we are of the considered view that their Lordships did not express any opinion regarding to the consequences of legal proceedings U/s.138 of the Negotiable Instruments Act filed by the unregistered partnership firm. Therefore, we hold that the said ruling has no application in the present set of facts.

15. The learned counsel Mr. C. Padmanabha Reddy further relied upon a ruling reported in Kerala Arecanut Stores v. M/s. Ramkishore and Sons