INDRAJIT GOGOI Vs. STATE

JUDGEMENT

(1.) Can an unregistered firm, which consists of two or more partners, prosecute, under section 138 read with section 142 of the Negotiable Instrument Act (in short, the NI Act), a person, whose cheque has been dishonoured, due to insufficiency of fund, by the drawers Bank Or, whether such a prosecution, on the basis of a complaint made by an unregistered firm is, by virtue of the provisions of sub-section (2) of section 69 of the Indian Partnership Act, 1932 (in short, the Partnership Act) impermissible in law These are the principal questions, which this criminal petition, made under section 482 CrPC, has raised.

(2.) I have heard Mr. BD Konwar, learned counsel for the petitioner, and Mr. AK Goswami, learned senior counsel, appearing on behalf of the opposite party.

(3.) Let me in brief, set out the facts leading to this petition. The opposite party herein filed, as complainant, a complaint, in writing, in tire Court of the Chief Judicial Magistrate, Jorhat, seeking prosecution of the present petitioner as accused for offences allegedly committed under section 138 read with section 142 of the NI Act, the case of the complainant being, in brief, thus : The accused issued a cheque, on 25.12.2006, for a sum of Rs.2,21,217, drawn on Bank of Baroda, Jorhat Branch, in the name of M/s Auto Sales and Services Station, which is an unregistered firm, as payee. This cheque, on being presented to the Bank, in question, was dishonoured, on 27.12.2006, on the ground of insufficiency of fluid. The said firm, then, sent a notice to the accused demanding payment of the amount, covered by the said cheque, within a period of 15 days from the date of the receipt of the notice. As the demand had not been met the complaint aforementioned was filed. This complaint gave rise to CR Case No. 59/2007. Having recorded the statement of the complainant under section 200 CrPC. learned Judicial Magistrate, Jorhat, passed on order, on 27.2.2007, taking cognizance of offence under section 138 of the NI Act and directing, accordingly, issuance of summons to the present petitioner as accused.