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2023 DIGILAW 1177 (GUJ)

Hiteshkumar Pulin Gupta v. Prakashbahi Prajapati

2023-12-22

NISHA M.THAKORE

body2023
JUDGMENT : (Nisha M. Thakore, J.) 1. Present appeal is under Section 378 of the Code of Criminal Procedure, challenging judgment and order dated 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 Section 138 of the Negotiable Instruments Act. 2. Brief facts of the complaint as contended by the original complainant is that : 2.1 The complainant – Hiteshkumar Pulin Gupta claims to be a partner of M/s. Ramanand Plastics. It is the case of the complainant that said the partnership firm is engaged in the business of selling woven fabrics and had come in contact with the respondent – accused M/s. Jerum Plastics, who is represented through his authorized person Mr. Prakash Prajapati. 2.2 According to the complainant, the respondent – accused had purchased the goods worth Rs.2,59,29,527/- and till 12.08.2014 had paid an amount of Rs. 2,40,50,000/-. Thus, the outstanding amount of Rs.32,99,415/- with interest was to be realized from the respondent. 2.3 It is further contended that the two cheques bearing Nos.005366 dated 11.03.2015 and 005365 dated 25.06.2015 each of an amount of Rs.5 Lakhs were handed over against such outstanding amount by the respondent – accused, which was drawn in the name of the complainant firm. According to the complainant, the cheque bearing No.005356 was presented for realization after the same was returned back on the ground of insufficient funds. The memo of such return of cheque was issued by the bank dated 29.06.2015. 2.4 Similarly, the cheque bearing No.005366 dated 11.06.2015 was deposited with the concerned bank on 12.06.2015, which had also returned with an endorsement of bank “funds insufficient”. The memo of the returned cheque was issued by the bank on 25.06.2015. 2.5 In such circumstances, the complainant was constrained to issue legal notice on 02.06.2015 addressed to the respondent firm, raising demand for a cheque amount of Rs.10 Lakhs. According to the complainant, the said notice was duly served upon the respondent – accused on 04.07.2015, however, the same was neither responded nor the outstanding was repaid. 2.5 In such circumstances, the complainant was constrained to issue legal notice on 02.06.2015 addressed to the respondent firm, raising demand for a cheque amount of Rs.10 Lakhs. According to the complainant, the said notice was duly served upon the respondent – accused on 04.07.2015, however, the same was neither responded nor the outstanding was repaid. 2.6 This led the original complainant to lodge the complaint under Section 138 of the Negotiable Instruments Act, before the learned Principal Senior Civil Judge and Additional Judicial Magistrate First Class, Kalol, on 04.09.2015, which was registered as Criminal Case No.2525 of 2015. 3. Upon registration of the aforesaid Criminal Case, verification of the complainant was recorded on 04.09.2015 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 Section 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 Section 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 learned Magistrate has mainly taken into consideration the bar provided under Section 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 dated 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 Section 378 of the Cr.P.C. 4. The appeal was preferred before this Court under section 378(4) of the Code of Criminal Procedure, along with application seeking leave to appeal being Criminal Misc. Application No.774 of 2017. This Court by order dated 13.01.2017 has granted leave to appeal and the appeal was admitted. 5. Mr. Narendra Jain, learned advocate has appeared on behalf of the appellant – original complainant and Mr. Rajesh Soni, learned advocate for the respondent No.1 – original accused, has assisted the Court. Learned advocates appearing on behalf of the respective parties were heard at length and the matter was kept for orders. 6. Mr. Jain, learned advocate, has invited attention of this Court to the grounds taken into consideration by the learned Magistrate while dismissing the complaint, which is on the issue of maintainability of the complaint at the instance of an unregistered partnership firm. He, at the outset, has referred to Exhibit 60 produced on record, which is true copy of the partnership deed of the original complainant firm and has submitted that the learned trial Court committed serious error in recording finding that there is no documentary evidence produced showing that the signatory of the complaint has been given authority by the firm to pursue the complaint. He submitted that the examination of the aforesaid document at Exhibit 60 clearly spelled out the authority given to the signatory of the complaint to pursue the legal matters and even otherwise, the appellant being one of the partners of the firm, in light of principle of the Partnership Act, even in absence of any expressed authority on behalf of the firm, the partner can always pursue the proceedings in his capacity as an agent to protect the interest of the firm. He further submitted that the learned trial Court committed serious error in relying upon the judgment of the Bombay High Court in the case of Sai Accumulator. The attention of this Court was invited to another decision of the Bombay High Court in the case of Narendra S/o. Amarnathji Kalda Vs.Balbirsingh S/o. Motisingh Chawhan reported in 2020 Crimes (HC)-1-443. By referring to the relevant paras , the learned advocate submitted that in fact the judgment in the case of Sai Accumulator is no longer good law inasmuch as noticing the contradictory view expressed by two Benches of Andhra Pradesh High Court in the cases of Amit Desai Vs. M/s. Shine Enterprises and Sai Accumulator, the larger Bench of Andhra Pradesh High Court in the case of A.V. Ramanaiah Vs. M. Shekhara 2007 SCC OnLine AP 1261 had overruled the view taken by Andhra Pradesh High Court in the case of Amit Desai by holding that the bar contained under Section 69 of the Act would not get attracted for initiating action by or against an unregistered partnership firm for the offense committed under Section 138 of the Negotiable Instruments Act. He, therefore, urged this Court to reverse the order of acquittal. 7. Mr. Jain, learned advocate, has further made submissions on merits of the case by referring to the scheme of Negotiable Instruments Act. It was urged that though the statutory notice was served upon the respondent – accused, no reply was given to such notice, no dispute was raised with regard to the partnership deed though specific assertion with regard to registered partnership firm was made. The attention of this Court was invited to the cross-examination of the original complainant, wherein specific assertion with regard to the goods being purchased and the delivery to the respondents accused were made. No formal denial has emerged on record as against such assertion. The attention of this Court was invited to the cross-examination of the original complainant, wherein specific assertion with regard to the goods being purchased and the delivery to the respondents accused were made. No formal denial has emerged on record as against such assertion. No question was raised with regard to the status of partnership firm. In fact, it has transpired on record that the complainant has appeared as partner of the firm. The accused had not raised any question with regard to the account being maintained by the partnership firm. In light of such evidence having emerged on record, the learned advocate submitted that the learned trial Court ought not to have accepted the defense raised by the respondent – accused with regard to the status of partnership firm and the existence of legally enforceable debt. 8. In light of the aforesaid submissions being made by the learned advocate for the original complainant, further reliance was placed on the application seeking production of additional evidence, which has been moved by the appellant – original complainant. By such application, the appellant has sought permission of this Court at the appeal stage to produce a document at Annexure A, which is a true copy of the registration of form in prescribed Form G dated 05.10.2012. By referring to the aforesaid document, learned advocate has submitted that necessary application was submitted before the Registrar of Firm, Mehsana Division. The extract of Form G reflects the name of the appellant firm at Sr. No.5, which relates to the date 01.07.2020. The reliance was placed on the judgment of the Hon’ble Supreme Court in the case of Rajeshwar Prasad Mishra Vs. State of West Bengal reported in 1965 SC 1887 to submit that discretionary powers are confer upon the Appellate Court to allow such application of production of evidence, which may otherwise help in clarifying the entire factual matrix. It was further submitted that in absence of a dispute being raised with regard to status of partnership firm being registered, there was no occasion for the appellant to produce such a document before the learned Magistrate. He, therefore, urged this Court to accept such additional evidence, which otherwise addresses the root cause of the issue involved. 9. The aforesaid submissions of the learned advocate for the complainant have been vehemently objected by Mr. Rajesh Soni, learned advocate for the respondent No.2 – original accused. He, therefore, urged this Court to accept such additional evidence, which otherwise addresses the root cause of the issue involved. 9. The aforesaid submissions of the learned advocate for the complainant have been vehemently objected by Mr. Rajesh Soni, learned advocate for the respondent No.2 – original accused. At the outset, the learned advocate has raised a dispute with regard to the service of statutory notice served upon the respondent No.2 – original accused. The attention of this Court was invited to the details of the address reflected in the cause title. He has further referred to the cross-examination of the complainant, wherein he had admitted that the signature of the respondent Prakashbhai does not appear on Exhibit 21 postal acknowledgement slip of the statutory legal notice. He further submitted that in cross-examination, the complainant has admitted that first notice upon Jerum Plastics was sent at the address with details i.e. Shivam Weigh Bridge, Mehsana, where plot No. mentioned by the complainant in cross-examination, referred to the plot No.220 or 202 by referring to the aforesaid consideration in details of the address. Learned advocate has disputed the service of legal notice and non-compliance of the mandatory provisions of Section 138(b) of the Act and therefore, he urged this Court not to interfere in the present appeal recording acquittal of the respondent – accused. 10. It was further contended that the complainant cannot be treated as holder in due course. Learned advocate has referred to the documents placed on record i.e. disputed cheque which was drawn in the name of “Ramanand Plastics” as against the name, which appear in the cause title of the original complaint “Hiteshkumar Pulin Gupta”, a partner of “Ramanand Plastics”. The averments made in the original complaint were read before the Court to contend that no pleadings are to the effect of the original complainant Hiteshkumar Pulin Gupta being authorized person to lodge the complaint on behalf of the partnership firm Ramanand Plastics. The terms and conditions of the partnership deed produced at Exhibit 60 were also read before the Court, more particularly, clause 17.0 with subject “Restrictions”. Learned advocate has submitted that in fact, it was agreed between the partners that none of the partners shall, without consent of other partners, institute any proceedings in any Court of law in the name and on behalf of the partnership firm. Learned advocate has submitted that in fact, it was agreed between the partners that none of the partners shall, without consent of other partners, institute any proceedings in any Court of law in the name and on behalf of the partnership firm. He therefore, submitted that in absence of any averments or any authority letter issued in the name of Hiteshkumar Pulin Gupta permitting him to prosecute the complaint on behalf of the partnership firm Ramanand Plastics, no error can be found with the approach of the learned Magistrate recording acquittal in absence of any evidence brought on record with regard to the registration of partnership firm. According to the learned advocate, the learned Magistrate has rightly ignored the aforesaid partnership deed though brought on record at Exhibit 6. Addressing the Court on the second issue of legally enforceable debt, the learned advocate submitted that noticing any lacuna in lodging of the complaint and defense of misuse of cheque being categorically raised by the respondent – accused has rightly shifted the burden upon the original complainant to prove his case beyond reasonable doubt. According to the learned advocate, in absence of non-production of any bill, account book to satisfy the Court with regard to the existence of alleged transaction consequently existence of legally enforceable debt, the learned Magistrate has rightly acquitted the respondent herein original accused. The learned advocate for the respondent – accused has relied upon the following authorities: 1. Shankar Finance and Investments Vs. State of Andhra Pradesh and Ors. reported in (2008) 8 Supreme Court Cases 536 (Paras 11 and 16) 2. Engineering Control Vs. Banday Infratech Pvt. Ltd. unreported decision of High Court of Jammu & Kashmir and Ladakh at Srinagar (CRMC No.381 of 2018 dated 08.07.2022. (Paras 10 to 16) 3. M/s. New Kruba Jeweller Vs. V. Kanchana, High Court of judicature at Madras, judgment dated 07.12.2016 in Criminal Appeal No.6 of 2014 (Paras 43 and 44) 4. M/s. Surendra Steel Rolling Mills Vs. Sh. Sanjiv Kumar, Punjab-Haryana High Court, dated 17.12.2008 passed in Criminal Appeal No.343 – DBA of 1994 (Para 14) 5. Krishna Janardhan Bhat Vs. Dattartraya G. Hegde (2008) 4 SCC 54 (Para 33) 11. Lastly, the learned advocate has objected to grant of application seeking permission of production of additional documents. M/s. Surendra Steel Rolling Mills Vs. Sh. Sanjiv Kumar, Punjab-Haryana High Court, dated 17.12.2008 passed in Criminal Appeal No.343 – DBA of 1994 (Para 14) 5. Krishna Janardhan Bhat Vs. Dattartraya G. Hegde (2008) 4 SCC 54 (Para 33) 11. Lastly, the learned advocate has objected to grant of application seeking permission of production of additional documents. It was submitted that the aforesaid documents were claimed to have been presented before the Registrar of Partnership Firm in the year 2012, whereas the complaint was lodged in the year 2015. In such circumstances, the complainant was under obligation to produce such documents during the course of trial. It was for the complainant to be vigilant in the trial court proceedings and having failed to produce such documents at the relevant stage, the same may not be permitted to be filled up lacuna at the appeal stage. By making aforesaid submissions, learned advocate urged this Court to dismiss the appeal to uphold the order of acquittal of the respondent – accused. 12. In rejoinder, the learned advocate for the appellant had invited my attention to various provisions of the Partnership Act to contend that the statutory provision confers right upon the partner of the Firm to protect the interest of the Firm and can pursue legal proceedings. For adjudicating the said issue raised, learned counsel had referred to the relevant provisions under the Partnership Act. Sec.2(a), 4, 18, 19, 22 and 25 of Indian Partnership Act reads as follows; Sec.2. Definitions:-In this Act, unless there is anything repugnant in the subject or context, (a) an "act of a firm" means any act or omission by all the partners, or by any partner or agent of the firm which gives rise to a right enforceable by or against the firm; Definition of "Partnership" "Partner" "Firm" and "Firm Name":- "Partnership" is the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all. Persons who have entered into partnership with one another are called individually, "partners" and collectively "a firm", and the name under which their business is carried on is called the "firm-name". Section 18. Subject to the provisions of this Act, a partner is the agent of the firm for the purposes of the business of the firm. Section 19. Persons who have entered into partnership with one another are called individually, "partners" and collectively "a firm", and the name under which their business is carried on is called the "firm-name". Section 18. Subject to the provisions of this Act, a partner is the agent of the firm for the purposes of the business of the firm. Section 19. Implied Authority Of Partner as Agent Of The Firm;- (1) Subject to the provisions of section 22, the act of a partner which is done to carry on, in the usual way, business of the kind carried on by the firm, binds the firm. The authority of a partner to bind the firm conferred by this section is called his "implied authority". (2) In the absence of any usage or custom of trade to the contrary, the implied authority of a partner does not empower him to - (a) submit a dispute relating to the business of the firm to arbitration, (b) open a banking account on behalf of the firm in his own name, (c) compromise or relinquish any claim or portion of a claim by the firm, (d) withdraw a suit or proceeding filed on behalf of the firm, (e) admit any liability in a suit or proceeding against the firm, (f) acquire immovable property on behalf of the firm, (g) transfer immovable property belonging to the firm, or (h) enter into partnership on behalf of the firm. Section 22. Mode Of Doing Act To Bind Firm:- In order to bind a firm, an act or instrument done or executed by a partner or other person on behalf of the firm shall be done or executed in the firm-name, or in any other manner expressing or implying an intention to bind the firm. Section 25. Liability of a partner for acts of the firm:- Every partner is liable, jointly with all the other partners and also severally, for all acts of the firm done while he is a partner. 13. The learned counsel therefore submitted that in terms of Sec.2(a) of the act, an act of the firm also means the act done by a partner or the agent of the firm. There is no such provision under the partnership act which expressly bars a partner to act on behalf of the partnership firm. 13. The learned counsel therefore submitted that in terms of Sec.2(a) of the act, an act of the firm also means the act done by a partner or the agent of the firm. There is no such provision under the partnership act which expressly bars a partner to act on behalf of the partnership firm. On the contrary, Section 2(a) of the Indian Partnership Act, 1932 expressly authorizes the partner to act on behalf of the Partnership firm. Under Sec.18 of the said act, the partner has been bestowed with the character of an agent of the firm for the purposes of business of the firm. Under Sec.22 of the said act, in order to bind a firm, an act or instrument done or executed by a partner or other person on behalf of the firm shall be done or executed in the firm-name or in any other manner expressing or implying an intention to bind the firm. Under section 19, Subject to the provisions of Section 22 , the act of a partner which is done to carry on, in the usual way, business of the kind carried on by the firm, binds the firm. The authority of a partner to bind the firm conferred by this section is called his "implied authority". There are some specific bars and prohibitions to the implied authority under sub-clauses (a) to (h) of Section 19(2) of the Act. But there is no bar for a partner to file a complaint U/s.138 of N.I. Act. Therefore, an individual partner has implied authority to sign, institute and prosecute the complaints before criminal courts on behalf of the complainant firm. 14. I have extensively heard the learned advocates appearing for the respective parties and have closely perused the R & P. The main issue which falls for consideration of this Court as regards maintainability of the complaint at the instance of one of the partners namely Hiteshkumar Pulin Gupta to lodge the complaint in his capacity as partner on behalf of the partnership firm is required to be dealt with in the first point of time. By moving the application seeking production of additional documents, the original complainant intends to bring on record the extract of Form G maintained by the Registrar of firm. By moving the application seeking production of additional documents, the original complainant intends to bring on record the extract of Form G maintained by the Registrar of firm. On bare perusal of the aforesaid document, it can be noticed that the name of the partnership firm – payee – Ramanand Plastics appears in the title of the Form G. The details of partners of said firm includes the name of the present complainant – partner i.e. Hiteshkumar Pulin Gupta at Sr. No.5. The date of joining of the partners of the said firm is reflected as 01.07.2012. As against that the document, which is produced on record i.e. partnership deed at Exhibit 60 suggests that partnership firm came into existence by aforesaid partnership deed on 01.07.2012. The said document is in the name of “ADDENDUM TO THE PARTNERSHIP DEED”, which seems to have been a notarized document executed before the Notary on 11.08.2012. The aforesaid document suggests that in all five partners have been joined to constitute a partnership firm in the name and style of “Ramanand Plastics”. This includes the present complainant – Hiteshkumar Pulin Gupta as one of the partners. The business of the partnership firm relates to manufacturing and trading of plastics materials like LL/LD/HM/HD liner bags/rolls, agriculture shade nets used for the purpose of agro-crops and other similar sets of plastics items, which was initiated in the name and style of “M/s. Ramanand Plastics”. By the said addendum of the partnership deed, apart from earlier partners Mahaveerprasad Syonaranyan Chowdhary and Shradha Manish Sharma, three other partners namely Manish Nandkishor Sharma, Hiteshkumar Pulin Gupta (original complainant) and Mr. Anil Sanwarmal Kabra, were also introduced as partners in the said partnership firm. Reference was made to the manufacture of HDPE/PP woven sacks and other related items, which were included in the original deed. Considering the fact that the extract of registration Form is the core issue involved in the matter in order to consider the arguments raised by the respective parties with regard to maintainability of the original complaint as presented before the learned Magistrate, this Court is of the view that the interest of justice would be served to allow the production of such documents at this stage of appeal. 15. 15. Having held so, the next question which arises for consideration of this court is as to whether the learned Magistrate committed any error in dismissing the complaint on the ground of absence of registration of the partnership as noted earlier. The learned Magistrate has relied upon the decision of the Bombay High Court in the case of Sai Accumulator while arriving at such a conclusion as pointed out by the learned advocate for the original complainant, had been reexamined by the Bombay High Court in the case of Narendra (Supra). The Court has ultimately held that the bar contained under Section 69(2) of the Act, 1932 would not attract for initiating action by or against an unregistered partnership firm for the offense committed under Section 138 of the Negotiable Instruments Act. In the opinion of this Court, the aforesaid principle laid down by the Bombay High Court is ruled out by the judgment of the Hon’ble Supreme Court in the case of Sunilbhai Somabhai Ajmeri Vs. Akasharay Developers reported in 2022 SCC Online SC 114. By the said judgment, the Hon’ble Supreme Court has clarified the nature of suit filed by the unregistered partnership firm, which will not bar under Section 69(2) of the Partnership Act. In the said case, the suit was filed by the unregistered partnership firm against the respondent developer seeking injunction and declaration of the sale deed dated 24.02.2015 as null and void. The respondent therein by relying upon the Section 69(2) of the Partnership Act moved an application seeking rejection of the plaint as being barred under law. The trial Court rejected such an application. However, the High Court reversed the order of the trial Court and rejected the plaint. The Court has relied on another decision of the Hon’ble Supreme Court in the case of Pursottam Vs. Shivraj Fine Art Litho Works reported in 2007(15) SCC 58 , wherein it was held that the claim and relief sought in the Suit by the firm arose out of the contract and suit is hit of Section 69(2) of the Act and therefore, the suit was held not maintainable. Being aggrieved by the aforesaid decision of this Court, Special Leave Petition was filed before the Hon’ble Supreme Court by the firm. Being aggrieved by the aforesaid decision of this Court, Special Leave Petition was filed before the Hon’ble Supreme Court by the firm. Thus, the point for consideration before the Hon’ble Supreme Court was essentially whether Section 69(2) of the Act barred the suit filed by the registered firm. The Hon’ble Supreme Court after taking into consideration Section 69(2) of the Act itself and its earlier judgment in the cases of Haldiram Bhujiawala and Anr. Vs. Anand Kumar Deepak Kumar and Anr. : (2000) 3 SCC 250 and Raptakos Brett & Co. Ltd. Vs. Ganesh Property (1998) 7 SCC 184 , arrived at conclusion that Section 69(2) would be attracted only when: 1. The contract in question is in existence with third party 2. The contract is entered by the firm in course of business dealing 3. The contract is entered for enforcement of statutory right or common law right. 16. Thus, applying the aforesaid enunciation of the principle of law, when the contract entered by the firm in the course of business dealing with the interest of a third party, are relevant factors to be considered with regard to maintainability of proceedings by an unregistered firm. 17. At this stage, apt would be to revisit the principle of law enunciated by this Court in the case of Ruturaj Ayurvedic Gruh Udhyog (Through Respondent No. 2) and Another Versus Navnitlal and Company Through Devang Manojbhai Gandhi and Another , 2017 SCC OnLine Guj 2805 : (2017) 2 GLH 312 . This Court had taken into consideration the earlier judgments in the case of Sai Accumulator industries (supra) as well as of the Division Bench of the Kerala High Court in the case of Kerala Arecanut Stores v. Ramkishore and sons, AIR 1975 Ker 144 , wherein reference was made to various provisions of the Act regarding rights/obligations arising out of a negotiable instrument observed that the obligation of the drawer of the cheque as well as the indorser to the indorsee who is the holder in due course arises by virtue of statutory provision and there being no privity of contract between the maker of a cheque and the holder in due course, any right of action available to such holder is not under any contract. The Kerala High Court thus held that the complainant is entitled to sue on his cheque by reason of the right conferred upon him by the statute. That being so, action under Section 138 is not a suit by the indorsee to enforce a right arising out of a contract and, therefore, the bar under Section 69(2) of the Partnership Act will not operate in such a case. 18. In view of aforesaid legal position and having accepted the production of additional documents, essentially the extract of registration of the firm, undoubtedly the firm was registered. There is no hesitation in holding that the partnership firm “Ramanand Plastics” was a registered partnership firm on the date of transaction alleged i.e. date on which the disputed cheques dated 11.07.2015 and 25.06.2015 were issued. In such circumstances, the issue of effect of non registration of partnership firms with regard to the maintainability of the complaint is answered accordingly. 19. The next question therefore, arises as regards the locus standi i.e. the maintainability of the complaint at the instance of the complainant – Hiteshkumar Pulin Gupta in his capacity as partner of Ramanand Plastics. The learned advocate for the respondent – original accused has invited attention of this Court to Clause 17 of the partnership deed, which reads as under: “CLAUSE 17. RESTRICTIONS None partner shall without the consent of the other partner will: 1. Indulge in any speculation business. 2. Create any pledge, mortgage, hypothecation, charge, lien or any sort of encumbrance on the assets of the partnership. 3. Borrow or lend money on behalf of/or any in the name of partnership except in the ordinary course of business 4. Enter into any bond or furnish security for any person or knowingly cause or suffer to be done in any manner whereby the partnership interest may be endangered or harmed. 5. Mortgage or charge his/her share in the property or profits of the firm. 6. Draw, accept or endorse any bills of exchange or promissory notes on account of the firm except in the ordinary course of business of partnership. 7. Settle, compromise, give up or refer to the arbitration any disputes, claims, demands or suit by or against the partnership. 8. 6. Draw, accept or endorse any bills of exchange or promissory notes on account of the firm except in the ordinary course of business of partnership. 7. Settle, compromise, give up or refer to the arbitration any disputes, claims, demands or suit by or against the partnership. 8. Institute any proceedings in any court of law in the name of or on behalf of the partnership If any party commits any breach of any of the foregoing stipulation, he / she shall be indemnify other partners from all losses and expenses on account thereof.” 20. Bare reading of Clause 17(g) of the partnership deed suggests that in case, any proceedings are to be instituted in any Court of law in the name of or behalf of the partnership firm, the restrictions are to be on the partner to not to proceed without consent of other partners. Said clause has to be read as mandatory in as much as it provides the consequence with regard to the effect of non compliance of such clause. Clause 17(h) further provides that if any of the party committed any breach of foregoing stipulations then he or she shall be indemnifying other partners or loss on account thereof. At the same time, Clause 17 of the said deed provides that in case of any question arise with regard to recourse to be adopted for the conduct of the business or for any of the question arising in course of partnership business unless otherwise agreed, the provisions of the Partnership Act or any other statutory or amendment, modification or reenactment as in force shall apply. The aforesaid restrictions incorporated in the addendum under clause 17 is more or less similar to the express language of section 19(2) of the Partnership Act which otherwise provides certain restrictions or prohibitions as regard implied authority of the partner in view instances to act as agent on behalf of Firm. Taking note of the aforesaid provisions and specific clause incorporated in the partnership deed, it was for the complainant to lead cogent material before the trial Court about holding authority to pursue the proceedings on behalf of the partnership firm. In light of the facts as noticed from the record, it would be germane to take note of the defense raised by the respondent accused as regards misuse of cheque at the behest of Manish Sharma. In light of the facts as noticed from the record, it would be germane to take note of the defense raised by the respondent accused as regards misuse of cheque at the behest of Manish Sharma. It is noticed that the said Manish Sharma name appears as one of the partners in the partnership deed ( EXH.60) and in cross examination a very specific question was led by the counsel of the accused as he being non available as shifted abroad. The non examination of said witness leads to an adverse inference against the complainant’s status of being holder in due course. In such circumstances, in absence of any authority, whether the complaint at the instance of a person though being one of the partners, can be treated as maintainable. 21. This issue can also be examined in light of the provisions of the Negotiable Instruments Act, more particularly, the term “Payee” and “the holder” in due course as defined under the Act. As per Section 7 of the Act, the term “payee” means person named in the instruments to whom or to whose order the money is by the instrument directed to be paid. In the present case, the disputed cheques have been drawn in the name of partnership firm “Ramanand Plastics”. The term “holder in due course" has been defined under Section 9 of the Act, which means any person, who for consideration became the possessor of the cheque, if payable to the payee and for sufficient cause to believe that there does not exist any defect in the title of the person from whom he derived his title. In absence of expressed authority, more particularly, the mandatory clause which has been incorporated in the partnership deed itself, the complainant cannot be termed as “payee” or “holder in due course” to maintain such a complaint under Section 138 of the Act. 22. So far as provisions of Negotiable Instruments Act are concerned, the complaint is maintainable at the instance of ‘payee’ or ‘holder in due course’ of the disputed cheque. Indisputably, the disputed cheque was issued in the name of “Ramanand Plastics”. The demand notice has been issued by the complainant in his capacity as partner of the partnership firm. 22. So far as provisions of Negotiable Instruments Act are concerned, the complaint is maintainable at the instance of ‘payee’ or ‘holder in due course’ of the disputed cheque. Indisputably, the disputed cheque was issued in the name of “Ramanand Plastics”. The demand notice has been issued by the complainant in his capacity as partner of the partnership firm. In such circumstances, in absence of any expressed authority of the partnership firm, does not confer any right / authority upon the complainant though being partner of the firm, to pursue the proceedings or to raise such demand. Therefore, in the opinion of this Court the complaint is not maintainable. 23. Having held so, this Court is of the view that the consequential question of examining the matter on merits does not warrant further consideration as the complaint itself is not found maintainable at the instance of the partner of the firm. Hence, the present Appeal fails and is hereby dismissed. Bailable warrant issued upon respondent accused stands cancelled. The application seeking production of additional evidence stands allowed for the reasons recorded and is accordingly disposed.