Bombay High Court
Nutan S/O Natthuji Jinde vs Devendra S/O Haridas Dhawane on 6 December, 2017
Bench: R. B. Deo
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,
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.
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
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
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
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.
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
