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2016 DIGILAW 749 (MP)

Jijamata Spinning Mills Pvt. Ltd. v. Sanjay

2016-08-29

JARAT KUMAR JAIN

body2016
ORDER 1. This petition under section 482 of the Code of Criminal Procedure [in brief “the Code”] has been filed against the order dated 19.12.2012 passed by JMFC, Indore in Criminal Case No.38493/2012, whereby took cognizance for the offence under section 138 of the Negotiable Instruments Act. 2. Non-applicant – Sanjay Dhoot, who is a sole Proprietor of M/s. Avantika Ginning Factory has filed a private complaint under section 138 of the Negotiable Instruments Act [in brief “the Act”] on the ground that two cheques each of Rs.50.00 lacs given by the applicant No.4 has been dishonoured by the bank. After sending statutory notice, complaint has been filed against the applicants. On that basis, learned Magistrate took the cognizance for the aforesaid offence. Being aggrieved, this petition is filed on the ground that the complaint should have been filed by the Firm – M/s. Avantika Ginning Factory; whereas it is filed by the non-applicant Sanjay Dhoot which is not maintainable. 3. Learned counsel for the applicants submits that applicant No.4 has given two cheques to M/s. Avantika Ginning Factory and the statutory notice is also sent by M/s. Avantika Ginning Factory, therefore, the complaint should have been filed by M/s. Avantika Ginning Factory; whereas the complaint is filed by Sanjay Dhoot. Sanjay Dhoot has received the cheques not in an individual capacity but as a Proprietor of M/s. Avantika Ginning Factory, therefore, the complaint has not been filed properly and the order of taking cognizance is erroneous. For this purpose, learned counsel placed reliance on the judgment of Bombay High Court, reported in the case of Bhupesh Rathod v. Dayashankar Prasad Chaurasia [2015(3) DCR 625], and the judgment of Hon'ble apex Court reported in the case of M/s. Shankar Finance and Investments v. State of Andhra Pradesh [2008(4) MPHT 339 (SC)]. 4. On the other hand, learned counsel for the non-applicant submits that Sanjay Dhoot is sole Proprietor of M/s. Avantika Ginning Factory, therefore, he has filed the complaint in his own name showing sole Proprietor of M/s. Avantika Ginning Factory. This fact is mentioned in the complaint also. 4. On the other hand, learned counsel for the non-applicant submits that Sanjay Dhoot is sole Proprietor of M/s. Avantika Ginning Factory, therefore, he has filed the complaint in his own name showing sole Proprietor of M/s. Avantika Ginning Factory. This fact is mentioned in the complaint also. It is further submitted that the judgment cited by learned counsel for the applicants supports non-applicant's case in which Hon'ble apex Court in the case of M/s. Shankar Finance and Investments (supra), held that sole Proprietor can file the complaint in his own name showing Proprietor of the Firm and the same principle has been laid down by Hon'ble apex Court in the case of A.C.Narayanan v. State of Maharashtra [ (2014)11 SCC 790 ]. Thus, there is no substance in this petition. 5. After hearing learned counsel for the parties, perused the record. 6. Hon'ble apex Court in the case of M/s. Shankar Finance and Investments (supra), held as under :- “11. The next question is where a proprietary concern carries on business through an attorney holder, whether the attorney holder can lodge the complaint ? The attorney holder is the agent of the grantor. When the grantor authorises the attorney holder to initiate legal proceedings and the attorney holder accordingly initiates legal proceedings, he does so as the agent of the grantor and the initiation is by the grantor represented by his attorney holder, and not by the attorney holder in his personal capacity. Therefore, 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 a sole proprietary concern, represented by its sole proprietor; and (iii) the proprietor or the proprietary concern represented by the attorney holder under a power of attorney executed by the sole proprietor. It follows that in this case the complaint could have been validly filed by describing the complainant in any one of the following four methods : “Atmakuri Shankara Rao, sole proprietor of M/s. Shankar Finance and Investments” or “M/s. Shankar Finance and Investments, a sole proprietary concern represented by its proprietor Atmakuri Shankara Rao” or “Atmakuri Shankara Rao, sole proprietor of M/s. Shankar Finance and Investments, represented by his attorney holder Thamada Satyanarayana” or “M/s. Shankar Finance and Investments, a proprietary concern of Atmakuri Shankara Rao, represented by his attorney holder Thamada Satyanarayana”.” 7. The same principle has been approved by the Hon'ble apex Court in the case of A.C.Narayanan (supra). So far as the judgment of Bombay High Court in the case of Bhupesh Rathod (supra), is concerned, that judgment is in reference to a Company incorporated under the Companies Act and company being a juristic person has a separate and distinct identity apart from its directors. Therefore, for the transaction of the company, the complaint can be filed only by the Company through its directors; whereas in the present case the non-applicant is a sole Proprietor of the Firm, therefore, he can file the complaint in his own name showing sole Proprietor of the Firm. I find that the complaint has been properly filed by the non-applicant and the objection raised by the applicants has no substance. Thus, the petition is hereby dismissed. Copy of the order be sent to the trial Court for information. G. L. Paliwal for applicants; Vinay Saraf for non-applicant.