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TMI Blog2022 (7) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - CRIMINAL APPEAL NO.54 OF 2017 - - - Dated:- 29-6-2022 - R.N. LADDHA, J. Mr. V. P. Thali, Advocate for the Appellant. Mr. Aldrin Monteiro, Advocate for Respondents No.1 and 2. JUDGMENT The appellant, who was the original complainant in N.I. Act Case No.14/2011/B on the file of the Judicial Magistrate, First Class, B Court, Panaji, is aggrieved by the dismissal of his complaint and acquittal of the accused/respondents of the offence punishable under Section 138 of the Negotiable Instruments Act,1881 (hereinafter referred to as the Act for short). 2. The brief facts of the case which emanate from the record are that the respondents No.1 and 2 approached the appellant in the textile shop known as Saroj Emporium at Panaji and requested the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 138 of the Act would not lie against him. Insofar as the respondent No.2 is concerned, it is stated that though he had issued the disputed cheque, the cheque was issued on behalf of the partnership firm Expore but the same was issued after dissolution of the firm and that there cannot be any legally enforceable liability of a non-existent partnership firm. Further, there were no averments in the complaint that the accused were in charge of and were responsible to the firm for the conduct of the business of the firm. 6. Heard Mr. V.P. Thali, learned Counsel for the appellant and Mr. A. Monteiro, learned Counsel for the respondents. Perused the impugned judgment, evidence, grounds in appeal memo and material on record. 7. Before going into the rival contentions of the parties, it must be noticed that the respondent No.2 had admitted his signature on the cheque in question. It is also seen from record that the respondent No.2 had signed the cheque in question in the capacity of a partner of the respondent-firm Expore . Further, it is not in dispute that the statutory legal notice was duly served on the respondents but they neither replied to the notice nor made any pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said that they were guilty of the offence punishable under Section 138 of the Act and no prosecution would lie against a partner on a simple accusation in a complaint that such person was the partner of the firm, Mr. Thali, learned Counsel for the appellant has pointed out that in the complaint it has specifically averred that the accused/respondents No.1 and 2 are the only partners of the respondent No.3-firm and on this representation the complainant supplied the textile material to them. He argued that since the respondents No.1 and 2 alongwith firm-respondent No.3, were impleaded as the accused, the necessity of stating that the respondents No.1 and 2 were in charge of and were responsible to the firm-respondent No.3, for the conduct of the business of the firm was inconsequential. He pointed out that it has been specifically averred in the complaint that they are the only partners of the respondent No.3- firm. Further, he pointed out that the respondent No.2 had issued the cheque in question and this fact remains absolutely undisputed. In his view, the complaint is required to be read as a whole and the pleadings made by the complainant in the complaint are sufficient to attr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rship Act,1932, in no uncertain terms. It says that a public notice has to be given by intimation to the Registrar of Firms and by publication in the Official Gazette and in atleast one vernacular newspaper circulative in the District where the Firm to which it relates, has its place of business. In short, the clear object of Section 45 of the Partnership Act, 1932, is to protect third parties who did not have any prior notice of the dissolution of a firm while dealing with an erstwhile partner of such a surreptitiously dissolved firm would not be affected by such dissolution of the firm of which no public notice was given unless they themselves had acknowledged such dissolution. 15. However, 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. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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