apeal61.2000.J.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.61 O
F 2000
Nutan s/o Natthuji Jinde,
Aged about 40 years,
Occ: Cycle shop,
R/o Hind Nagar, Wardha. ....... APPELLANT
...V E R S U S...
Devendra s/o Haridas Dhawane,
Aged 40 years, Occ: Business,
R/o Shindhi (Meghe), Wardha. ....... RESPONDENT
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None for the Appellant.
Shri G.R. Kothari, Advocate holding for Shri V.R. Choudhari,
Advocate for Respondent.
Ms. R.V. Kaliya, APP to assist the Court.
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CORAM: ROHIT B. DEO , J.
DATE: th
6 DECEMBER,
201
7 .
ORAL JUDGMENT
1] The appellant has not engaged counsel although he is
duly served with the notice to engage another counsel since the counsel on record was elevated to the bench. 2] Shri G.R. Kothari, Advocate holding for Shri V.R. ::: Uploaded on - 06/12/2017 ::: Downloaded on - 08/12/2017 03:42:30 ::: apeal61.2000.J.odt 2 Choudhari, appears on behalf of the respondent. 3] Since the appellant is not represented, at the request of the court Ms. R.V. Kaliya, the learned Additional Public Prosecutor has assisted the court ably and with the assistance of both the learned counsels, I have scrutinized the record. 4] The appellant is aggrieved by the judgment of acquittal dated 20.01.2000 passed by the Judicial Magistrate First Class, 1st Court, Wardha in Summary Criminal Case 115/1999, by and under which, the respondent is acquitted of offence punishable under section 138 of the Negotiable Instruments Act, 1881 ('Act' for short).
5] The disputed cheque, which according to the appellant (hereinafter referred to as "the complainant) was dishonoured and the statutory notice not complied with is at Exh.19. The payee is one Rajni Cycle Stores. 6] A perusal of the complaint reveals that the ::: Uploaded on - 06/12/2017 ::: Downloaded on - 08/12/2017 03:42:30 ::: apeal61.2000.J.odt 3 complainant is Nutan Jinde whose occupation is described as "Cycle Shop". The allegation in the complaint is that the accused issued the disputed cheque in the name of Rajni Cycle Stores, of which the complainant is the proprietor. The cheque is issued towards discharge of existing liability, which according to the complainant is the refund of the loan extended to the accused. 7] The learned Magistrate has acquitted the accused holding that the statutory notice is not served. In view of the development of law subsequent to the judgment of the learned Magistrate, it is debatable whether the finding recorded is correct. 8] However, even de hors the finding recorded by the learned Magistrate that the notice is not served, I find from the record that there is absolutely no evidence adduced by the complainant that he is the proprietor of the payee Rajni Cycle Stores. Specific questions were put to the complainant to examine himself as CW-1, on behalf of the accused as to whether any evidence is produced on record, which line of cross-examination reveal the defence and yet no attempt was made by the ::: Uploaded on - 06/12/2017 ::: Downloaded on - 08/12/2017 03:42:30 ::: apeal61.2000.J.odt 4 complainant to prove that he is the proprietor of the payee Rajni Cycle Stores. It would be apposite to note the following observations of the Apex Court in Milind Shripad Chandurkar v. Kalim M. Khan and another reported in (2011) 4 SCC 275 and in paragraphs 16, 20, 21, 22 and 26, which read thus:
16. Thus, from the above, it is evident that the appellant complainant could not produce any document to show that he was the proprietor of Vijaya Automobiles in spite of the fact that the issue had been agitated by the accused-respondent no.1 at every stage. It is also evident from the documents on record that in the list of witnesses the complainant had mentioned the name of his banker as a witness, however, the said banker was not examined.
20. Section 142 provides for taking cognizance of the offence notwithstanding anything contained in Cr.P.C. which reads as under:
"142.(a) no court shall take cognizance of any offence punishable under Section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque." (emphasis added).
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 ::: Uploaded on - 06/12/2017 ::: Downloaded on - 08/12/2017 03:42:30 ::: apeal61.2000.J.odt 5 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.
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 the 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.::: Uploaded on - 06/12/2017 ::: Downloaded on - 08/12/2017 03:42:30 ::: apeal61.2000.J.odt 6
9] In my opinion, the complaint instituted by Nutan Jinde was clearly not maintainable.
10] While I do not express any final opinion on the finding recorded by the learned Magistrate that the statutory notice was not served, the acquittal of the accused is perfectly justified, though may not be for the reasons recorded by the learned Magistrate.
11] I do not find any compelling reason to interfere with the judgment of acquittal.
12] The appeal is devoid of substance and is rejected.
JUDGE NSN ::: Uploaded on - 06/12/2017 ::: Downloaded on - 08/12/2017 03:42:30 :::