HITESHKUMAR PULIN GUPTA Vs. PRAKASHBHAI PRAJAPATI

JUDGEMENT

(1.) Present appeal is under Sec. 378 of the Code of Criminal Procedure, challenging judgment and order dtd. 22/12/2016 passed by the learned Principal Senior Civil Judge and Additional Chief Judicial Magistrate First Class, Kalol, in Criminal Case No.2525 of 2015. By the said judgment and order, the learned Magistrate proceeded to record the acquittal of the present respondent - original accused thereby dismissing the complaint preferred by the present appellant under Sec. 138 of the Negotiable Instruments Act.

(2.) Brief facts of the complaint as contended by the original complainant is that :

(3.) Upon registration of the aforesaid Criminal Case, verification of the complainant was recorded on 4/9/2015 and having considered the prima facie case of the complainant, the learned Magistrate had proceeded to issue summons upon the respondent - accused. Original complainant had appeared before the learned Magistrate and his plea was recorded. The summary trial was conducted by the learned Magistrate. During the course of trial, various documentary and oral evidence was produced on record by the original complainant. At Exhibit 36, the purshish was filed by the original complainant closing its right to produce further evidence. Ultimately, further statement under Sec. 313 of the Code of Criminal Procedure, wherein specific defense was raised by the accused by submitting that the cheque in question were in fact handed over to one Manish Sharma as security cheque and the same have been misused by the complainant as well as Mr. Sharma. It was further submitted that there did not exist any relation with the complainant and no transactions as alleged have ever been entered with the complainant. The parties were directed to place their written statement at Exhibit 61 and 63 before the learned Magistrate. Considering overall evidence, which has come on record and the submissions made by the learned advocates appearing for the respective parties, the learned Magistrate noticed the fact that the complaint was presented on behalf of the partnership firm in absence of any documents with regard to registration of partnership firm, had found that the complaint is not maintainable in the eyes of law. The learned Magistrate has mainly taken into consideration the bar provided under Sec. 69(2) of the Partnership Act and various authorities on the legal point of maintainability of proceedings at the instance of an unregistered firm. The reliance was placed upon the judgment of the Bombay High Court in the case of Sai Accumulator Vs. M/s. Shetty Brothers, 2016 SCC OnLine Bom 2287 as well as judgment of the Hon'ble Supreme Court in the case of A.C. Narayana Vs. State of Maharashtra, 2013 (1) CTC 560. Consequently, the learned Magistrate has also examined the defense raised by the respondent - accused with regard to misuse of cheques. Learned Magistrate has by impugned judgment and order dtd. 22/12/2016 has arrived at conclusion that the complaint was not maintainable and even otherwise the complainant has failed to prove its case beyond reasonable doubt, has recorded acquittal of the respondent - accused. Hence, this appeal at the instance of the original complainant against the order of acquittal under Sec. 378 of the Cr.P.C.