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Bhangaru Packaging Co., Rep. by Its Proprietor, M. Madhusudan Rao Vs. Marwel Organics, Rep. by Its Managing Partner, Daggubati Srinivas Prasad and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Case NumberCriminal Petition No. 6054 of 2002
Judge
Reported in2003(1)ALD(Cri)679; 2003(1)ALT(Cri)497; III(2003)BC352; 2003CriLJ2498
ActsCode of Criminal Procedure (CrPC) - Sections 482; Negotiable Instruments Act - Sections 138 and 139; Indian Partnership Act - Sections 69(2)
AppellantBhangaru Packaging Co., Rep. by Its Proprietor, M. Madhusudan Rao
RespondentMarwel Organics, Rep. by Its Managing Partner, Daggubati Srinivas Prasad and anr.
Appellant AdvocateB. Dhananjaya, Adv.
Respondent AdvocatePublic Prosecutor
DispositionPetition dismissed
Excerpt:
.....mentioned that petitioner-accused purchased adhesives from respondent-complainant - accused issued cheque for making payment - cheque dishonoured on want of sufficiency of funds - when cheque is issued presumption can be made that it is supported by legally enforceable debt unless contrary is proved - earlier cheque issued by petitioner was time barred and after that another cheque issued for purpose of discharging legally enforceable debt - held, no grounds to quash proceedings of said case. - all india services act, 1951.sections 8 & 11 & a.p. buildings (lease, rent and eviction) control rules, 1961, rule 5: [v.v.s. rao, g. yethirajulu & g. bhavani prasad, jj] refusal by landlord to receive rent - deposit of rent in court - held, a tenant has the option to take recourse to..........for the 1st respondent-complainant filed a photostat copy of acknowledgement of registration of firm issued by the registrar of firms, dated 27.8.1991, wherein it is stated that the name of marvel organics has been entered in the register of firms on 27.8.1991. whether m. madhusudhan rao as managing director has a right to file the complaint on behalf of marvel organics is a question of fact to be decided at the time of trial. 7. the copy of the partnership deed, dated 2.6.2001, filed along with the petition shows that one mallela vasu became a partner in the place of mallela koteswara rao who died. this partnership deed came into existence subsequent to the dishonour of the cheque in question. no reliance can be placed upon this document at this stage for the simple reason that it.....
Judgment:
ORDER

K.C. Bhanu, J.

1. This petition is filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in C.C. No. 197/2001 on the file of the Additional Munsif Magistrate, Cherala.

2. The brief facts that are necessary for the disposal of the present petition are that the accused-petitioner-M/s. Bhangaru Packaging Co., represented by its Proprietor Sri M. Madhusudan Rao, purchased adhesives from the complainant-1st respondent-Marwel Organics represented by its Managing Partner Sri Daggubati Srinivas Prasad on credit to a tune of Rs. 1,95,000/- as on 13.7.2000, that the petitioner issued a cheque bearing No. 669850, dated 113.7.2000 for Rs. 1,95,000/- to the 1st respondent, that when the cheque was dishonoured for want of funds, the 1st respondent requested the petitioner to pay the amount of the dishonoured cheque, that thereafter the petitioner issued another cheque bearing No. 957941, on 24.1.22001 for Rs. 1,13,958/-, as the previous cheque was time-barred, with an assurance that funds would be available in the account, that that cheque too WAS dishonoured for insufficiency of funds, and that thereupon the 1st respondent got issued a demand notice to the 1st respondent which the petitioner did not claim, and therefore the petitioner committed an offence punishable under Section 138 of the Negotiable Instruments Act. The complaint lodged by the petitioner was registered as C.C. No. 197/2001 on the file of the Additional Munsif Magistrate, Cherala. To quash the proceedings in the said case, the accused filed the present petition.

3. Learned counsel for the petitioner contended that the 1s respondent-firm came into existence in pursuance of a deed of partnership on 2.6.2001, but the cheque in question was issued on 24.1.2001 and, therefore, by the date of issuance of the cheque, the 1st respondent-firm was not registered and, therefore, the 1st respondent-firm was not competent to file the complaint because it was unregistered, and that the person whose name was shown in the partnership deed was not the Managing Partner of the 1st respondent-firm, and therefore the proceedings are liable to be quashed. Learned counsel for the 1st respondent-complainant contended that the name of the 1st respondent-firm was entered in the Registrar of Firms on 27.8.1991 and, therefore, there is no bar under the provisions of Section 69(2) of the Indian Partnership Act. Therefore, he prays, the petition be dismissed.

4. A Division Bench of this Court has held in Amit Desai v. M/s. Shine Enterprises, 2000 (1) ALT (CRL.) 384 (D.B.) (A.P.) that explanation to Section 138 of the Negotiable Instruments Act specifically lays down that the debt or other liability means legally enforceable debt or other liability and the enforcement of legal liability has to be in the nature of civil suit because the debt or other liability cannot be recovered by filing a criminal case and when there is a bar of filing a suit by unregistered fir, the bar equally applies to criminal case as laid down in explanation (2) of Section 138 of the Negotiable Instrumental Act.

5. There cannot be any dispute about the above proposition of law laid down by this Court. The question in the present case is the 1st respondent-complainant was a registered partnership in existence by the date of issuance of the cheque.

6. Learned counsel for the petitioner filed a deed of partnership which is said to have been executed by and between Daggubati Srinivasa Prasad and Mallela Vasu on 2.6.2001. This is an unregistered partnership deed executed by and between the parties therein after the issuance of the cheque in question. But, as seen from the cause-title of the complaint, Marwel Organics-complainant is represented by its Managing Partner, Daggubati Srinivas Prasad. In the copy of the unregistered partnership deed, dated 2.6.2001, it is stated that Daggubati Srinivasa Prasad and Mallela Koteswara Rao, father of Mallela Vasu, had been carrying on business in the name and style of Marvel Organics vide deed, dated 4.1.22003. On the other hand, learned counsel for the 1st respondent-complainant filed a Photostat copy of acknowledgement of registration of firm issued by the Registrar of Firms, dated 27.8.1991, wherein it is stated that the name of Marvel Organics has been entered in the register of Firms on 27.8.1991. Whether M. Madhusudhan Rao as Managing Director has a right to file the complaint on behalf of Marvel Organics is a question of fact to be decided at the time of trial.

7. The copy of the partnership deed, dated 2.6.2001, filed along with the petition shows that one Mallela Vasu became a partner in the place of Mallela Koteswara Rao who died. This partnership deed came into existence subsequent to the dishonour of the cheque in question. No reliance can be placed upon this document at this stage for the simple reason that it was not registered as required under the provisions of the Indian Partnership Act. So, by the date of issuance of the cheque in question, whether Marvel Organics was registered or not has to be decided at the time of trial, because Marvel Organics was registered in the year 1991. So, the decision relied upon by the learned counsel for the petitioner has no application to the present set of facts, because in that case the complainant-firm was not at all registered under the Indian Partnership Act by the date of issuance of the cheque therein.

8. The contention of the learned counsel for the petitioner that the allegations in the complaint do not constitute an offence under Section 138 of the Negotiable Instruments Act, cannot be accepted, because it is clearly mentioned in the complaint that the petitioner-accused purchased adhesives from the 1st respondent-complainant on credit, and issued a cheque for Rs. 1,95,000/- on 13.7.2000, but since that cheque was dishonoured and was time barred the petitioner-accused issued the cheque in question which too was dishonoured for want of sufficiency of funds. Under Section 139 of the Negotiable Instruments Act, it shall be presumed, unless the contrary is proved, that the holder of the cheque received the cheque of the nature referred to in Section 138 of the Act for the discharge, in whole or in part, of any debt or other liability. Therefore, when a cheque is issued, there is a presumption that it is supported by a legally enforceable debt, unless proved to the contrary. In the case on hand, since the earlier cheque was time-barred, the petitioner issued the cheque in question to the 1st respondent for the purpose of discharging legally enforceable debt.

9. In view of the above discussion, this Court is of the opinion that there are no grounds to quash the proceedings at this stage. Hence, the petition is dismissed. However, any observations made in this order are for the limited purpose of deciding the issue in the petition and shall not have any bearing on the trial of the case and shall not affect the rights of the parties.


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