JUDGEMENT V.K. Sharma, Judge (Oral). The present criminal revision petition under Sections 397 and 401 of the Code of Criminal Procedure, 1973, ( in short ‘Cr.P.C.’) is directed against the judgment dated 3.6.2006, passed by the learned Sessions Judge, Shimla, dismissing the appeal filed by the petitioner, who shall hereinafter be called as ‘the convict’ and thereby affirming the judgment/order dated 17.11.2005/23.11.2005, passed by the learned Chief Judicial Magistrate, Shimla, H.P., convicting the convict for the offence under Section 138 of the Negotiable Instruments Act, 1881 (in short ‘the Act’) and sentencing him to undergo rigorous imprisonment for two months and to pay fine of Rs. 40,000/- and in default to suffer further simple imprisonment for two months with a direction that out of the amount of fine, if realized, a sum of Rs.24,600/- being the cheque/liability amount shall be payable to the complainant, the respondent herein, as compensation. 2. The facts of the case in brief are that the respondent (complainant) filed a complaint against the petitioner (convict) under Section 138 of the Act on the averments that he was running business of sale of cement bricks and other construction material in the name and style of M/s Thakur Devi Ram and others. During April and May, 1998, the convict purchased cement and bricks etc. from the complainant, for which he owed a sum of Rs.24,600/- to him. On 15.5.1999, the convict issued cheque No. 244127 in the sum of Rs.24,000/- drawn on UCO Bank, Vidhan Sabha, Shimla Branch, towards consideration of aforesaid articles purchased by him from the complainant. The complainant presented the cheque through his banker, that is, UCO Bank, Vidhan Sabha and the same was returned unpaid on 19.4.1999, with the endorsement “Not arranged for”, meaning thereby that the cheque was dishonoured. 3. According to the complainant, the cheque was presented on 19.5.1999. It was dishonoured on the same day. Consequently, statutory notice was issued by the complainant to the convict on 22.5.1999, which was served upon him on 23.5.1999 and on his failure to make payment of the amount of the cheque the complaint was filed on 16.6.1999 on these and other usual averments. 4.In his preliminary evidence, the complainant appeared as his own witness and reiterated on oath the averments made in the complaint. 4.In his preliminary evidence, the complainant appeared as his own witness and reiterated on oath the averments made in the complaint. On consideration of the same the learned Chief Judicial Magistrate issued process against the convict, who was served with notice of accusation, to which he did not plead guilty and claimed trial. The complainant’s evidence followed, who examined three witnesses including himself as CW-3. On close of the complainant’s evidence the convict was examined under Section 313 Cr.P.C, wherein his defence was that of innocence, false implication and denial. However, he admitted service of legal notice upon him. According to the convict, he had no dealings with the complainant and did not owe any amount to him. In answer to question No.6, he has submitted the following explanation:- “I had given a blank cheque to Devi Ram and Sons and the payment of the same had already been made by me in cash. I did not owe any liability therefore, there is no question to make payment to the complainant on his demand through notice.” 5. However, the convict did not lead any evidence. 6. After hearing the learned counsel for the parties, the learned Chief Judicial Magistrate proceeded to convict and sentence the convict as already noticed. Being aggrieved, he carried the matter in appeal to the court of Sessions, but without any success. It is how he is in revision before this court. 7. I have heard the learned counsel for the parties and gone through the record. 8. By placing reliance upon the law laid down by the Hon’ble Supreme Court in Milind Shripad Chandurkar Vs. Kalim M. Khan and Another, (2011) 4 Supreme Court Cases 275, the learned counsel for the convict submitted at the very outset that the complainant has miserably failed to prove his nexus or connection with firm M/s Thakur Devi Ram and Sons as its proprietor and as such the impugned judgment/order of conviction/sentence dated 17.11.2005/23.11.2005, passed by the learned Chief Judicial Magistrate and the subsequent judgment dated 3.6.2006, of the learned Sessions Judge, affirming the conviction and sentence cannot be sustained and are liable to be set aside. 9. 9. Per contra, the learned counsel for the complainant submitted that it was specifically averred by the complainant in the complaint that he is running the aforesaid business in the name and style of M/s Thakur Devi Ram and Sons, which assertion was reiterated by him on oath in his deposition as CW-3 and as such he has duly proved his nexus/connection with the said firm as its sole proprietor and as such the authority relied upon on behalf of the convict is not applicable in the peculiar facts and circumstances of the present case. 10. Before proceeding further, it shall be appropriate to notice the dictum of law laid down by the Hon’ble Apex Court in Milind Shripad Chandurkar vs. Kalim M. Khan and Another, in paras 21 to 27 of the report, which are as under:- “21. This Court in Shankar Finance and Investments v. State of A. P. dealt with the issue involved herein elaborately and held that (SCC p.540, para 11) where the “payee” is a proprietary concern the complaint can be filed:“(i) by the proprietor of the proprietary concern, describing himself as the sole proprietor of the “payee”; (ii) the proprietary concern describing itself as the sole proprietary concern, represented by its sole proprietor; and (iii) the proprietor or the proprietary concern represented by the attorney-holder under the power of attorney executed by the sole proprietor.”However, it shall not be permissible for an attorney-holder to file the complaint in his own name as if he was the complainant. He can initiate criminal proceedings on behalf of the principal.22.In a case of this nature, where the “payee” is a company or a sole proprietary concern, such issue cannot be adjudicated upon taking any guidance from Section 142 of the Act 1881 but the case shall be governed by the general law i.e. the Companies Act 1956 or by civil law where an individual carries on business in the name or style other than his own name. In such a situation, he can sue in his own name and not in trading name, though others can sue him in the trading name. So far as Section 142 is concerned, a complaint shall be maintainable in the name of the “payee”, proprietary concern itself or in the name of the proprietor of the said concern. 23. In such a situation, he can sue in his own name and not in trading name, though others can sue him in the trading name. So far as Section 142 is concerned, a complaint shall be maintainable in the name of the “payee”, proprietary concern itself or in the name of the proprietor of the said concern. 23. This Court in Shankar Finance case placing reliance on earlier judgments, particularly, in Janki Vashdeo Bhojwani v. Indusind Bank Ltd. held that the general principles of company law or civil law would apply for maintaining the complaint under Section 138 of the Act 1881.24.In National Small Industries Corporation Ltd. v. State (NCT of Delhi) this Court held as under: (SCC p. 415, para 14) “14. The term “complainant” is not defined under the Code. Section 142 of the NI Act requires a complaint under Section 138 of that Act to be made by the payee (or by the holder in due course)”25.Thus, in view of the above, the law stands crystallised to the effect that a person can maintain a complaint provided he is either a “payee” or “holder in due course” of the cheque.26. In the instant case, it is evident that the firm, namely, Vijaya Automobiles, has been the payee and that the appellant cannot claim to be the payee of the cheque, nor can he be the holder in due course, unless he establishes that the cheques had been issued to him or in his favour or that he is the sole proprietor of the concern and being so, he could also be payee himself and thus, entitled to make the complaint. The appellant miserably failed to prove any nexus or connection by adducing any evidence, whatsoever, worth the name with the said firm, namely, Vijaya Automobiles. Mere statement in the affidavit in this regard, is not sufficient to meet the requirement of law. The appellant failed to produce any documentary evidence to connect himself with the said firm.27. It is evident that the firm had a substantial amount of business as in one month it sold the diesel to respondent no. 1 - a single party, for a sum of Rs. 7 lakhs. The appellant would, in addition, have also been carrying out business with other persons. It is evident that the firm had a substantial amount of business as in one month it sold the diesel to respondent no. 1 - a single party, for a sum of Rs. 7 lakhs. The appellant would, in addition, have also been carrying out business with other persons. Thus, a person with such a big business must have had transactions with the bank and must have been a payee of income tax, sales tax etc. Thus, in such a fact-situation, there would be no dearth of material which could have been produced by the appellant to show that he was the sole proprietor of the said firm. The appellant failed to adduce any evidence in this regard, nor made any attempt to adduce any additional evidence at the appellate stage, in spite of the fact that the respondent is raising this issue from the initiation of the proceedings.” 11. Admittedly, cheque Ex.CW-3/A is in the name of Thakur Devi Ram & Sons. Cheque returning memo Ex.CW-2/C is also addressed to M/s Thakur Devi Ram & Sons. 12. True it is that it was averred by the complainant in the complaint that he was running the aforesaid business in the name and style of M/s Thakur Devi Ram and Sons. Though, while appearing as CW-3 in chief examination the complainant has reiterated the assertion that he is the sole proprietor of M/s Devi Ram and Sons, yet in cross examination he has admitted that on the day he was making statement in the court, he was not having any proof that he was sole proprietor of M/s Devi Ram and Sons. It is further stated by him that he did not remember as to when the cement was purchased by the convict from him. He had also not brought the copy of the bill book to the court. In further cross examination, he has denied that he has no concern with M/s Devi Ram and Sons and has volunteered that Devi Ram is his father. 13. In his statement under Section 313 Cr.P.C the convict denied that the complainant used to deal in the business of steel and cement known as M/s Devi Ram and Sons. He has also denied that cheque Ex.CW­3/A was issued by him in favour of the complainant. 14. 13. In his statement under Section 313 Cr.P.C the convict denied that the complainant used to deal in the business of steel and cement known as M/s Devi Ram and Sons. He has also denied that cheque Ex.CW­3/A was issued by him in favour of the complainant. 14. Thus, it is manifest that except the bald assertion made by the complainant in the complaint and reiterated on oath in his deposition as CW-3 that he is the sole proprietor of M/s Devi Ram and Sons, which aspect is vehemently disputed by the convict, there is no other cogent, reliable and trustworthy documentary evidence to prove nexus or connection of the complainant with the firm M/s Thakur Devi Ram and Sons. The evidence led by the complainant is wholly deficient in content to prove his nexus or connection with the said firm as its sole proprietor and the mere averments in the complaint to this effect as reiterated on oath in his deposition as CW-3, which is vehemently contested on behalf of the convict is not sufficient to establish such nexus or connection, as has been held by the Hon’ble Supreme Court in Milind Shripad Chandurkar, supra. 15. In view of the above, the revision petition is allowed and the impugned judgment/order dated 17.11.2005/23.11.2005 of the learned Chief Judicial Magistrate convicting and sentencing the convict for the offence under Section 138 of the Act, as upheld by the learned Sessions Judge, vide the impugned judgment dated 3.6.2006, cannot be sustained and are accordingly set aside, leading to acquittal of the convict for the said offence. The amount of fine, if realized, shall be liable to be refunded to the convict after the time prescribed for filing appeal against this judgment and in case of appeal orders of the Hon’ble Apex Court shall prevail.