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19. However, Division Bench of Andhra Pradesh High Court in Amit Desai and another vs. M/s Shine Enterprises and another 2000 Cri. L.J. 2386, did not .

concur with the view taken by the Kerala High Court while dealing with a case of dishonour of the cheque where the complainant firm was having business dealings with the accused and the firm was not registered. It is held that the suit cannot be instituted and it was observed as under:

and sentencing an offender for commission of the offence on proof of the guilt established after a criminal trial.

21. In Gurcharan Singh vs. State of Uttar Pradesh and another, 2002, Cri.L.J. 3682, a learned Single Judge of Allahabad High Court was dealing with an identical case between M/s Sterling Novelty Products, Moradabad (U.P.) a partnership firm and International Gifts Ltd. a company at Ontario, Canada, of which Gurcharan Singh was the President and had been made an accused. Gurcharan Singh petitioned the High Court and raised a dispute that respondent-firm was not registered and therefore, could not maintain the complaint. The learned Single Judge discussed Section 69 of the Partnership Act. It also considered the judgment rendered in Amit Desai (supra) and observed that the said judgment had not discussed the law involved except Section 69. The learned Single Judge thereafter referred to the judgment of the Hon'ble Supreme Court in the matter of BSI Ltd. (supra) and on the basis of the observations made therein, concluded that even if M/s Sterling Novelty Products was not a registered firm, the bar created under Section 69 of the Partnership Act had no application and the proceedings under Section 138 of the Act, were still maintainable.

24. Similar issue came up before Division Bench of Karnataka High Court in .

Gowri Containers vs. S.C. Shetty 2008 Cri. L.J. 498 and it was held as under:

" 9. Now coming to the contention of the respondents that in view of the provisions of Section 69(2) of the Indian Partnership Act, the amount under the transaction was not legally enforceable debt, reliance has been placed by the respondents learned advocate on a Division Bench decision of Andhra Pradesh High Court in Amit Desai and Anr. v. Shine Enterprises and Anr. 2000 Criminal Law Journal 2386 wherein in respect of an unregistered partnership firm, on the ground that the suit cannot be instituted by an unregistered firm, it was held that the debt against the accused was not a legally enforceable debt. That was the case in which, the second consignment received by the complainant could not be sold and it had been returned to the accused by dispatching through a lawyer and the accused had sent a credit note to the amount and promised to return the value of the stock returned to them. In that circumstances, the accused had issued a cheque and the complaint arose out of the dishonour of that cheque. The amount under the cheque arose out of that promise of the accused to return the value of the stock. That was a case of enforcement of a right arising out of such contract. That principle is not applicable to the fact of the present case.

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10. Relying on the decision held in the case of Amit Desai v. Shine Enterprises, 2000 Crl. LJ. 2386, a Division Bench judgment of the Andhra Pradesh High Court, the learned Counsel appearing for the petitioner has submitted that an unregistered firm cannot initiate action under Section 138 of NI Act. While deciding the case aforesaid, the Division Bench (supra) differed with the view taken by the Kerala High Court in the case of Kerala Arecanut Stores v. Ramkishore and Sons, AIR 1975 Kerala 144 and held that the explanation to Section 138 of the Nl Act specifically laid down that the debt or other liability means legally enforceable debt or other liability. It was observed by the Division Bench as under: