Judgment :- (Appeal against the Judgment dated 27.03.1998, made in C.C.No.483 of 1994 on the file of the Judicial Magistrate, No.3, Erode, Periyar District.) This appeal is filed by the complainant challenging the acquittal of the accused for the offences under Section 138 of the Negotiable Instruments Act passed by the learned Judicial magistrate, No.3, Erode, in C.C.No.483 of 1994 dated 29.03.1995. 2. The allegation, as per the complaint, is that the complainant is a registered partnership firm doing business in textiles under the name and style of "Jothi Sarees". The accused is the proprietor of "Dhanaraj Textiles" who is also doing business in textiles. It is stated in the complaint that the accused is a regular customer of the complainant and he purchased textile goods often on credit basis. It is further stated in the complaint that on 04.01.1994 under bill Nos.3 to 7, the accused purchased goods worth Rs.2,12,446/- on credit. It is further alleged after deducting several payments made by the accused, the outstanding amount as on date was Rs.2,05,079/-. In order to discharge the said liability, the accused is said to have issued four cheques in favour of the complainant totalling to Rs.2,05,329/- and the particulars of the cheques are as follows: While all the above cheques are drawn on the State Bank of Travancore, Tuticorin Branch, and all are post dated, for the convenient payment by the accused. Thereafter, the complainant presented the cheque bearing No.618452 on 15.04.1994 and the same was returned on the ground of "insufficient funds". Therefore, the complainant issued a lawyer's notice through registered post dated 25.05.1994 to the accused demanding payment within 15 days. It is further alleged in the complaint that after the receipt of the said notice the accused personally met the complainant and requested him to present all the above said cheques on 06.08.1994 and promised to make arrangements for clearing the cheques. Accordingly, on 06.08.1994, the complainant presented all the above said four cheques for collection with Corporation Bank, Erode. But to his shock and surprise all the said cheques were returned as dishonoured by the bankers of the accused on the ground of "insufficient funds". The bank Intimation is Exs.P.12 to 14, dated 11.08.1994, and the same were received by the complainant on 18.08.1994. Thereafter, the complainant issued a lawyer's notice through registered post dated 26.08.1994 which is marked as Ex.P.15. The bank Intimation is Exs.P.12 to 14, dated 11.08.1994, and the same were received by the complainant on 18.08.1994. Thereafter, the complainant issued a lawyer's notice through registered post dated 26.08.1994 which is marked as Ex.P.15. The accused received the said notice on 30.08.1994 and the postal acknowledgement is Ex.P.16. It is further given in the complaint that subsequent to the issue of notice, the accused returned the goods worth about Rs.1,74,908.85. The complainant has deducted the amount in respect of the goods returned and accordingly, the balance amount to be paid by the accused is Rs.1,85,079/- The complainant further stated in the complaint that in respect of the registered notice the accused failed to settle the amount due even after expiry of 15 days as contemplated under Section 138 of the Negotiable Instruments Act and thereby committed an offence under that Section. 3. During the course of trial, in order to prove the case of the complainant, the complainant examined himself as P.W.1 and filed Exs.P.1 to 20. 4. When the accused was questioned under Section 313 Cr.P.C. in respect of the incriminating materials made appearing against him, the accused denied his complicity in the offence and stated that he is not at all liable to pay any amount and he has also further stated that he had returned all the goods to the complainant and the complainant also received and accepted the same and therefore, he is not liable to pay any amount much less the amount in respect of the said dishonoured cheques, Exs.P.9 to 11. 5. The learned Magistrate on consideration of the entire evidence adduced by the complainant as well as considering the exhibits filed by the complainant has come to the conclusion that the complainant has not proved his case. Learned Magistrate has given the following two reasons for acquitting the accused: (i) The learned Magistrate has considered the evidence of P.W.1 and has come to the conclusion on the basis of the admission of P.W.1 that the accused had already returned the goods and the same was received and also acknowledged by the complainant and therefore, the present version of the complainant is not at all acceptable as there is absolutely no legally enforceable liability on the part of the accused to the complainant. (ii) The second reason given by the learned Magistrate for acquitting the accused is that the complaint was said to have been filed by the partnership firm. But the complainant has not produced any registered partnership deed to prove that he is a partner of the firm and therefore the complaint which was filed by a partnership firm is not a registered one and as such the complaint is not maintainable. The learned Magistrate also considered Ex.P.1, the partnership deed copy produced by the complainant and has come to the conclusion that the partnership deed which is dated 25.10.1994 is subsequent to the filing of the complaint in this case. 6. Heard Mr.M.M.Sundaresh, learned counsel appearing for the appellant and Mr. Vadivel, learned counsel appearing for the respondent. 7. The learned counsel appearing for the appellant has submitted that the complainant has proved his case by adducing sufficient materials and evidence before the Trial Court. It is further submitted by the learned counsel for the appellant that the reasons pointed out by the learned Magistrate for acquitting the accused are not based on the materials available on record. 8. On the other hand, learned counsel for the respondent submitted that there is no infirmity in the Judgment of acquittal passed by the learned Magistrate and the learned Magistrate has given categorical reasons for acquitting the accused. It is further submitted by the learned counsel for the respondent that the learned Magistrate has not overlooked any material available against the accused. 9. On a perusal of the entire materials available on record and also hearing the rival contentions put forward by the learned counsel for the parties, I am of the considered view that out of two reasons given by the learned Magistrate one reason is correct, but the other one viz., that the complaint is not maintainable on the ground that though the complaint was preferred by the partnership firm the complainant has not produced any document to substantiate the version of filing the complaint as a partnership firm. The reason assigned by the learned Magistrate that non-maintainability of complaint filed by the unregistered partnership firm is not sustainable in law. 10. It is needless to say that such argument is available in respect of the civil case and not in respect of the case under Negotiable Instruments Act with a penal provision under Section 138 of Negotiable Instruments Act. 10. It is needless to say that such argument is available in respect of the civil case and not in respect of the case under Negotiable Instruments Act with a penal provision under Section 138 of Negotiable Instruments Act. 11. In a decision rendered in Abdul Gafoor V. Abdurahiman reported in 1999 (4) Crimes 98 , Kerala High Court has held as follows: "Complaint by partnership firm to the effect of non-registration of firm under Section 69 of Partnership Act is applicable only to cases involving civil rights. It has no application to criminal cases since all partners are agents of the firm, every partner is competent to represent the firm and give evidence on behalf of firm". Therefore, the second reason as stated above given by the learned Magistrate, on the face of it, is unsustainable in law. But as far as the first reason is concerned viz., the accused returned all the goods is not disputed by the complainant and the complainant received and acknowledged the same and therefore there is absolutely no legally enforceable liability on the part of the accused. Therefore, the learned Magistrate has rightly rejected the case of the complainant on this ground. 12. On the perusal of the records, I have also come across yet another infirmity in the case of the complaint viz., on the first instance itself the complainant after depositing the cheque and after it was dishonoured on the ground of "insufficient funds" has issued a legal notice under registered post. But he has not initiated further action by filing a complaint against the accused. On the other hand, it is the case of the complainant that after receipt of the legal notice the accused approached and requested him to produce the cheques on a particular date. Such version on the face of it is unbelievable. Further, as per the decision of the Apex Court, the complainant having failed to initiate action by filing a complaint after presenting the cheque and after dishonouring of the same and also after sending legal registered notice, and now after dishonouring of cheques for a second time and after a fresh legal notice, the complainant is not entitled to file a complaint against the accused as the same is barred by the Limitation Act. 13. 13. The Apex Court has held in Sadanandan Bhadran V. Madhavan Sunil Kumar reported in AIR 1998 SC 3043 that, "... clause (a) of the proviso to Section 138 did not put any embargo upon the payee to successively present a dishonoured cheque during the period of its validity. On each presentation of the cheque and its dishonour a fresh right and not cause of action accrues. The payee or holder of the cheque may, therefore, without taking pre-emptory action in exercise of his right under clause (b) of Section 138 of the Act, go on presenting the cheque so as to enable him to exercise such right at any point of time during the validity of the cheque. But once a notice under clause (b) of Section 138 of the Act is 'received' by the drawer of the cheque, the payee or the holder of the cheque forfeits his right to again present the cheque as cause of action has accrued when there was failure to pay the amount within the prescribed period and the period of limitation starts to run which cannot be stopped on any account...". Subsequently, in the latest decision in Prem Chand Vijay Kumar V. Yashpal Singh And Another reported in (2005) 4 SCC 417 , the Honourable Supreme Court has considered the decisions rendered by the Apex Court earlier in Sadanandan Bhadran V. Madhavan Sunil Kumar reported in 1998 (6) SCC 514 which is equivalent to AIR 1998 SC 3043 and Dalmia Cement (Bharat) Ltd. V. Galaxy Traders & Agencies Ltd. reported in (2001) 6 SCC 463 . In that decision the Apex Court held that, "It is well settled that if dishonour of a cheque has once snowballed into a cause of action it is not permissible for a payee to create another cause of action with the same cheque. The period of one month for filing the complaint will be reckoned from the day immediately following the day on which the period of fifteen days from the date of the receipt of the notice by the drawer expires". In that decision the Honourable Supreme Court also clarified the decision reported in Dalmia Cement (Bharat) Ltd., V. Galaxy Traders & Agencies Ltd., (2001) 6 SCC 463 that it is not the giving of the notice but its receipt by the drawer which culminates in the cause of action. In that decision the Honourable Supreme Court also clarified the decision reported in Dalmia Cement (Bharat) Ltd., V. Galaxy Traders & Agencies Ltd., (2001) 6 SCC 463 that it is not the giving of the notice but its receipt by the drawer which culminates in the cause of action. Hence, in that case, on the drawer intimating that the purported notice was an empty envelope, the second notice based on second presentation and its dishonour was held to be proper. 13. Therefore, for the reasons stated above, this Court cannot disturb the Judgment of acquittal passed by the learned Magistrate. Therefore, the appeal stands dismissed.