Whether partner of firm can file complaint U/S 138 of NI Act and depose on behalf of partnership firm?
From the above provisions of the Act, it is clear that every partner is an agent of the Firm and his other partners for the purpose of business of the firm and the acts of every partner bind the firm and his partners, unless, of course, the partner had, in fact no authority to act for the firm and his other partners. The learned trial Magistrate relied upon the judgment of this Court in the case of (Mrs. Alka Toraskar Vs. State of Goa and others), 2007 (1) Goa L.T. 159 which pertains to a Cooperative Society. The trial Magistrate further relied upon (Fragrant Leasing and Finance Co. Ltd. Vs. Jagdish Katuria),MANU/UP/1085/2007 : 2008 All M.R. (Cri.) Journal 3 and the judgment in the case of (Chico Ursula D'Souza Vs. Goa Plast Pvt. Ltd.), reported inMANU/MH/1085/2008 : 2008 (6) Bom. C.R. 399 : 2009 (1) All M.R. 290, both of which pertain to company. Admittedly, a Company is a separate juristic person distinct from its directors or shareholders and the company acts through the resolution passed by the Board of Directors. Because of the above, a person, who claims to represent another, is bound to produce an authority or power which entitles him to appear. The above is not the case with the Partnership Firm. As has been already seen above, each partner is an agent of the Firm. In the present case, it is not that some person on the strength of power of attorney had filed a complaint and had deposed on behalf of the complainant. In the present case, the complaint was not filed by PW 1, but it was filed by the Firm, through PW 1, as partner of that Firm. The person, who deposed on behalf of the complainant, was one of the partners of the said complainant-Firm. In fact, the agreement dated 5/4/2005 was signed by same partner Shri Pandharinath Chafadkar (PW 1) for himself and as attorney of the other two partners Arun Chafadkar and Narayan Nigalye. In the circumstances above, the finding of the trial Magistrate that there was no authority to PW 1 to file the complaint or to depose on behalf of the complainant is not correct.
IN THE HIGH COURT OF BOMBAY
Decided On: 02.04.2014
Appellants: Reshmi Constructions
Vs.
Respondent: Laxman Vithal Chunekar
Hon'ble Judges/Coram:U.V. Bakre , J.
Citation: 2014(2)BomCR(Cri)297,2014(5)MHLJ 537
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