2022 (7) TMI 3 - HC - Indian Laws

Dishonor of Cheque - legally enforceable liability of a non-existent partnership firm - dissolution of partnership firm - obligation upon the partners of the firm to issue public notice of the dissolution of the firm - Section 141 of NI Act - Section 45 of the Indian Partnership Act, 1932 - HELD THAT - On perusal of the record including the evidence led by the parties, it is seen that neither the respondents had filed any document to show that they had complied with the mandate of Sections 45 and 72 of the Partnership Act,1932, by issuing public notice nor this issue was raised by the appellant before the Trial Court. Even the Trial Court failed to deal with the said issue. However, this being a question of law, there is no prohibition against raising the said contention in appeal. The question of applicability of Section 45 of the Indian Partnership Act, 1932, is only a question of law and such a question could be raised at any stage of the case and also in appeal. In fact, the learned Trial Court itself should have considered this aspect of the matter, even though it was not raised by or on behalf of the present appellant because it is the duty of any Court of Law to find out the truth and to that end, examine the applicability of the relevant provisions of the Law to the facts of the particular case which it is called upon to decide. The matter is remitted to the Trial Court with a direction to permit the parties to lead the evidence on the aspects as discussed.

Summary

Issues Involved:
1. Dismissal of complaint and acquittal of accused under Section 138 of the Negotiable Instruments Act, 1881.
2. Responsibility and liability of partners under Section 45 of the Indian Partnership Act, 1932.
3. Applicability of Section 141 of the Negotiable Instruments Act, 1881.
4. Compliance with statutory requirements for public notice of dissolution of a partnership firm.

Issue-Wise Detailed Analysis:

1. Dismissal of Complaint and Acquittal of Accused under Section 138 of the Negotiable Instruments Act, 1881:
The appellant, originally the complainant, was aggrieved by the dismissal of his complaint and the acquittal of the respondents for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881. The appellant supplied textile materials worth Rs. 7,50,000/- to the respondents on credit, accepting a postdated cheque. Upon presentation, the cheque was dishonoured with the remark "Account closed." Despite a statutory legal notice, no payment was made, leading to the filing of the complaint.

2. Responsibility and Liability of Partners under Section 45 of the Indian Partnership Act, 1932:
The appellant argued that under Section 45 of the Indian Partnership Act, 1932, partners continue to be liable to third parties for any act done by any of them until public notice of dissolution is given. The appellant claimed that no public notice of the dissolution of the firm was provided, making the respondent No.2 liable. The Trial Court failed to address whether the necessary public notice was given, a significant oversight given the legal implications.

3. Applicability of Section 141 of the Negotiable Instruments Act, 1881:
The Trial Court acquitted the respondents partly because the complaint did not explicitly state that the accused were responsible for the firm's business conduct. The appellant countered that the complaint sufficiently averred that the respondents were the only partners of the firm and thus responsible. The Trial Court did not adequately examine if the complaint met Section 141 requirements, necessitating a re-evaluation.

4. Compliance with Statutory Requirements for Public Notice of Dissolution of a Partnership Firm:
The record revealed that the partnership firm was dissolved before the transaction date. Section 45 of the Indian Partnership Act, 1932, mandates public notice of dissolution to protect third parties. The respondents failed to show compliance with this requirement, and the Trial Court did not address this issue. The appellant raised this legal question in the appeal, which is permissible.

Conclusion:
The High Court found that the Trial Court did not adequately consider vital aspects concerning the liability of the respondents under Section 45 of the Indian Partnership Act, 1932, and the applicability of Section 141 of the Negotiable Instruments Act, 1881. The High Court set aside the impugned judgment and remitted the matter to the Trial Court for a fresh decision, allowing the parties to present additional evidence. The Trial Court is directed to decide the case afresh within three months.