Himachal Pradesh High Court
M/S R.V. Hardware & vs Ram on 6 December, 2021
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 6th DAY OF DECEMBER, 2021
BEFORE
.
HON'BLE MS. JUSTICE JYOTSNA REWAL DUA
CRIMINAL APPEAL No.200 of 2019
Between:-
M/S R.V. HARDWARE &
SANITARY STORES HAVING
PARTNERSHIP FIRM AT MODEL
TOWN MANALI, P.O. &
TEHSIL MANALI, DISTRICT KULLU,
H.P. THROUGH SPA SHRI HEM RAJ
SON OF SHRI BAM DEV SHARMA,
RESIDENT OF MODEL TOWN MANALI,
POST OFFICE & TEHSIL MANALI,
DISTRICT KULLU, H.P.
r .....APPELLANT
(BY SH. MAAN SINGH, ADVOCATE)
AND
SHYAM DASS
SON OF SHRI TIKKAM RAM ALIAS TIKA
RESIDENT OF VILLAGE AND
POST OFFICE VASHISHT
TEHSIL MANALI, DISTRICT KULLU,
HIMACHAL PRADESH.
.....RESPONDENT
(SH. ADARSH K. VASHISTA, ADVOCATE.)
_________________________________________________________________
This petition coming on for hearing this day, the Court
passed the following:
JUDGMENT
This appeal arises out of the judgment passed by
learned Judicial Magistrate 1st Class, Manali, District Kullu, on
27.03.2019, whereby, the respondent/accused was acquitted of the
charges for the commission of offence under Section 138 of
Negotiable Instruments Act.
2. I have heard learned counsel for the parties and gone
.
through the record of the case.
3. A criminal complaint under Section 138 of the
Negotiable Instruments Act was filed by the firm M/s R.V. Hardware
& Sanitary Stores through one Sh. Hem Raj. The complaint was in
relation to a cheque allegedly issued by the respondent. Learned
r to
trial Court has acquitted the respondent vide impugned judgment.
The reasons for acquittal of the respondent as recorded by
learned trial Court are that (i) the complainant/appellant had not
produced the registration certificate of the firm on record;(ii) there
was no document on record to show about Sh. Rinchen Thomas
being the managing partner in the complainant firm and Sh.
Rinchen Thomas having further authorized Hem Raj to file the
complaint. Relevant part of the impugned judgment reads as
under:-
"15 Coming to case in hand, in the present case, the
complaint has been filed by SPA and the Power of Attorney
has been given by Rinchen Thomas as managing partner of
the said firm, as the cheque was in name of firm, therefore,
the first thing which was required to prove is that the
Rinchen Thomas was partner of the Firm and had authority
to appoint SPA for the purpose of dealing with the matter
related to the said Firm. In the present case, no registration
certificate of the Firm had been produced on record nor
there is anything to show that Rinchen Thomas was himself
a managing partner in the said Firm. First thing which was
required to be proved was that the complainant was holder
in due course and was having authority to file the complaint
on behalf of the Firm, however, the relationship of firm with
the Rinchen Thomas as managing partners has not been
.
established on record and there were two partners in the firm
as per CW-1 nor there is anything to show that he was
having authority to appoint said SPA for the purpose of filing
of the complaint and hence, it can be safely stated that it has
not been proved that he was authorized person for the
purpose of filing the complaint."
4. During hearing of the case, learned counsel for the
appellant invited attention to Cr.MP No.758 of 2019 filed by the
applicant/appellant under Section 391 of Code of Criminal
Procedure for placing on record certain additional documents. The
documents sought to be produced through this application are: (i)
partnership deed dated 09.10.2009, whereunder Sh.Rinchen
Thomas is stated to be one of the partners of the firm M/s R.V.
Hardware & Sanitary Store; (ii) resolution dated 24.04.2016,
whereunder, Sh.Rinchen Thomas has been authorized to be the
managing partner of the firm; and (iii) authorization letter dated
20.05.2016, whereunder, Sh.Rinchen Thomas has allegedly
authorized Hem Raj to issue notice as well as to file complaint
under Section 138 of NI Act in respect of the dishonour of cheque
No.374674 dated 30.04.2016.
5. Learned counsel for the petitioner has prayed for
setting-aside the impugned judgment dated 27.03.2019. In support
of this prayer, reliance has been placed upon a judgment passed by
a Co-ordinate Bench of this Court in Cr. Appeal No.140 of 2018,
tilted Ms. Uttam Traders Ranghri Versus Tule Ram alias Tula
Ram, decided on 11.09.2018. Following two questions were
considered in M/s Uttam Trader's case (supra):-
.
"(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."
In Uttam Trader's case (supra), the complainant feeling
aggrieved against the acquittal of the respondent alongwith the
main appeal had also filed an application Cr.MP No.464 of 2018
under Section 391 Cr.P.C. for placing on record the copy of
partnership deed by way of additional evidence. After considering
the exposition of law laid down on the subject, it was held that the
appellant/applicant (therein) ought to be granted one chance to
place and prove on record the partnership deed. Accordingly,
Cr.MP No. 464 of 2018 moved by the appellant (therein) was
allowed.
In respect of the second question regarding effect of
non-registration of the firm, after referring to long line of decisions
of various Hon'ble Courts, the Co-ordinate Bench of this Court held
as under:-
"26. From the discussion so far, it is abundantly clear that
.
an unauthorized partnership firm cannot approach the
Court for enforcement of any right arising from a
contract, hence civil proceedings for recovery of money
would be barred by virtue of sub Section (2) of Section
69 of the Partnership Act. However, proceedings under
Section 138 of the NI Act cannot be treated as civil suit
for recovery of cheque amount with interest as was
held by the Hon'ble Supreme Court in R.Vijayan vs.
Baby and another (2012) 1SCC 260."
Finally, the appeal was allowed. The judgment
impugned in M/s Uttam Trader's case was set aside and the matter
was remanded to the learned trial Court for fresh decision.
6. Learned counsel for the parties in the instant appeal
are unison that the controversy in the instant appeal is squarely
covered by the judgment passed in M/s Uttam Traders Ranghri's
case (supra). Consequently, Consequently, Cr.MP No.758 of 2019 is
allowed. Following the ratio of judgment in Uttam Trader's case
(supra), the appeal is also allowed. The judgment dated 27.03.2019
passed by the learned JMFC, Manali, District Kullu, in Criminal
Case No. 333/2016 tilted Ms. R.V. Hardware & Sanitary Stores vs.
Shyam Dass, is set-aside. The matter is remitted back to the
learned JMFC, who shall afford an opportunity to the appellant to
lead evidence with regard to the factum of partnership as also due
authorization, if any, in favour of Sh. Hem Raj. It goes without
saying that the respondents shall have corresponding right of cross-
examining the appellant's witnesses as well as right to lead his own
evidence.
.
The parties through their counsel(s) are directed to
appear before the learned trial Court on 20.12.2021.
The appeal is disposed of in the above terms. Pending
application(s), if any also stand disposed of.
Jyotsna Rewal Dua
Judge
December 06, 2021
R.Atal
