Chambers of Ishaan Garg
Ch. No. 217, Western Wing, District & Sessions Court, Tis Hazari, New Delhi, Delhi 110054
+91 8851742417, +91 8800386163
Thus, it is held that the registration or non registration of the partnership firm will have no bearing insofar as Section 141 of the Act of 1881 is concerned. The provision under Section 141 of the Act of 1881 makes it mandatory to arraign the company or the firm, as the case may be, as party accused in the complaint. This provision or any other provision of the Act of 1881 does not put embargo on making unregistered partnership firm an accused. That being the position and considering the preposition of law spelt out in the aforesaid case, I do not find any reason to take a different view in the matter. {Para 11}
12. In the present case, the cheque has been issued by the partnership firm. The said firm, admittedly, has been not made party accused in the complaint. Further, only the applicant has been made accused in the complaint. The non applicant no.1 has, in his complaint, averred that the applicant is one of the partners, which means that there are at least two partners in the firm. The other partner(s) has/have been not made accused in the complaint and, therefore, the complaint itself was not maintainable.
13. The learned counsel for non applicant no.1 submits that this objection was not raised either before the trial Court or before the first appellate Court. This contention is taken on record for the purpose of rejection inasmuch as it is well settled that the question of law can be raised at any stage of the proceeding and before any Court. The contention is, therefore, not sustainable.
14. Learned counsel for the non applicant no.1 then submits that the matter may be remanded back to the trial Court for consideration afresh by giving the non applicant no.1 permission to make the firm as party accused.
15. This submission has been rightly countered by the applicant by relying upon the judgment of the Hon'ble Apex Court in the case of Himanshu Vs. B. Shivamurthy and anr.; reported in MANU/SC/0072/2019 : (2019) 3 SCC 797. The Apex Court, while considering the compliance of Section 141 of the Act of 1881, has held that the company, which was not arraigned as accused in the complaint cannot be subsequently allowed to be added, for the reason that there was no demand notice against the company and thus the preconditions under Section 138 of the Act of 1881 were not complied with as against the company. In the present case as well, the non applicant no.1 has not sent demand notice against the firm and thus, pre-conditions under Section 138 of Act of 1881 have not been complied with. In the circumstances, the request made by the counsel for the non applicant no.1, cannot be accepted.
IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)
Criminal Revision Application Nos. 92 and 94/2023
Decided On: 17.10.2023
Satheesan Kuttappan and Ors. Vs. P.P. Sudhakaran and Ors.
Hon'ble Judges/Coram:
Anil L. Pansare, J.
Citation: MANU/MH/4223/2023
