Debajyoti Goswami vs Unknown
2021 Latest Caselaw 5669 Cal

  48
15.11.2021

sb

CRR 1037 of 2021 (Via video conference)

In the matter of : Debajyoti Goswami .......Petitioner

Mr. Kajal Mukherjee Mr. Manoj Kurni Mr. Bikash Chakraborty ...for the petitioner

Mr. Krishan Ray Mr. Sekhar Mukherjee ....for the opposite party

Learned advocate for the petitioner is aggrieved by the

order dated 6.2.2021. He submits that the petitioner is the

proprietor of M/s. Jyoti Enterprise and as such M/s. Jyoti

Enterprise should be incorporated as an accused. He further

submits that he is covered by the judgments of the Hon'ble

Supreme Court in the case of Aneeta Hada vs. Godfather

Travels and Tours Pvt. Ltd. reported in (2012) 5 SCC 661 ;

Gunmala Sales Pvt. Ltd. vs. Anu Mehta and Ors. reported in

(2015) 1 SCC 103 and a coordinate bench judgment passed in

CRR 2487 of 2018.

The learned advocate for the petitioner draws the attention

of this court to paragraph 12 of the judgment of the Hon'ble

Apex Court in Gunmala Sales Pvt. Ltd. (Supra) and

emphasizes on the definition of company which would include

within its ambit a proprietorship firm as the word "Firm" as

appearing in the explanation to Section 141 of the Negotiable

Instrument Act, is appearing.

I have considered the submissions advanced by the

petitioner and I am of the view that the same is untenable. The

legal proposition so far as the concept of company, partnership

firm and a proprietorship concern are concerned, there is

different perceptions.

However, it has been submitted before this court that it is

the present petitioner/accused who has signed the cheque.

Under no circumstance, without going into evidence, the present

petitioner can be absolved of his liability at this stage as the

complaint prima facie makes out a case, so far as the

admissibility of the cheque is concerned and the presumptions

relating to Section 139 of the Negotiable Instrument Act. The

issue of debt or liability can be agitated by the defence by

rebutting the prosecution evidence either by way of cross-

examination or by way of adducing defence evidence but so far

as the maintainability of the complaint at the inception is

concerned, there is no scope for interference of this court.

Accordingly, CRR 1037 of 2021 is dismissed.

Pending application, if any, is consequently disposed of.

All parties are to act on the server copy of this order duly

downloaded from the official website of this court.

(Tirthankar Ghosh, J.)