ORAL ORDER
Order in R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 16077 of 2023
Learned advocate has relied on a decision of coordinate Bench of this Court in the case of Ruturaj Ayurvedic Gruh Udhyog V/s. Navnitlal And Company reported in 2017 (2) GLH 312. The relevant portion is reproduced herein below.
"Negotiable Instruments Act, 1881 - S. 138 - Partnership Act, 1932 - S. 69(2) - dishonour of cheque - unregistered partnership firm filed complaint through one of its partners - effect on non-registration of partnership firm - whether a complaint u/s. 138 of the NI Act is maintainable
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at the instance of an unregistered partnership firm - held, a careful reading of S. 69(2) of Partnership Act clearly shows that 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 cheque - even if cheque issued by a partner of unregistered firm for legally recoverable debt or otherwise and if such cheque dishonoured when it was presented for encashment, it amounts to a criminal liability - therefore, dismissal of a complaint by Trial Court is incorrect - whenever complaint is presented u/S. 138 of Negotiable Instruments Act, it is duty of learned Magistrate to take note of cognizance and record sworn statement of complainant and his witnesses and after hearing if there is any prima facie case then it is duty of Court to issue summons to accused - therefore, contention of the applicants that filing of a criminal complaint by a partner of an unregistered firm is hit by S. 69(2) of the Partnership Act cannot be accepted - further, S. 69(2) of Partnership Act is applicable only where the civil rights are invoked and not in criminal cases - non-registration of the firm has no legal bearing on the criminal case - applications disposed of".
Learned advocate has also relied on the order passed by this Court dated 12.9.2023 in this matter. In view of above submissions, the application seeking leave to prefer an appeal is required to be allowed. Hence, this application stands allowed and disposed of.
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Order in R/CRIMINAL APPEAL NO. 169 of 2024
ADMIT.
Learned APP, Ms.Bhatt, for Respondent-State waives service of notice of admission.
Bailable warrant be issued for a sum of Rs.5,000/- against Respondent No.2.
Record and proceedings be called for from the Court below. Matter be listed as per seiratim.
(M. K. THAKKER,J)
ASHISH M. GADHIYA
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