Sadashiv Vasant Deshinge vs Rajagouda Marutigouda Patil
2022 Latest Caselaw 2168 Kant

              IN THE HIGH COURT OF KARNATAKA

                       DHARWAD BENCH

          DATED THIS THE 10TH DAY OF FEBRUARY, 2022

                           BEFORE

          THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

            CRIMINAL PETITION NO.100892 OF 2019


BETWEEN:

SADASHIV VASANT DESHINGE
AGE: 45 YEARS, OCC: AGRICULTURE
R/O: SAI NAGAR, RAIBAG,
TQ: RAIBAG, DIST.: BELAGAVI
                                                ... PETITIONER

(BY SRI ANAND R.KOLLI, ADVOCATE.)


AND:

RAJAGOUDA MARUTIGOUDA PATIL
AGE: 48 YEARS, OCC: AGRICULTURE
R/O. BHIRADI, TQ: RAIBAG, DIST.: BELAGAVI.

                                               ... RESPONDENT

(BY SRI RAJASHEKAR BURJI, ADVOCATE.)

      THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
THE CODE OF CRIMINAL PROCEDURE, 1973, PRAYING TO QUASH THE
PROCEEDINGS IN P.C.NO.35/2016 PENDING ON THE FILE OF
PRL.CIVIL JUDGE AND JMFC, RAIBAG, FOR AN OFFENCE PUNISHABLE
UNDER SECTION 138 OF THE NEGOTIABLE INSTRUMENTS ACT, 1881,
BY ALLOWING THE PRESENT CRIMINAL PETITION INSOFAR AS THE
PETITIONER IS CONCERNED, ETC.,.

      THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS
DAY, THE COURT MADE THE FOLLOWING:-
                                         2




                                      ORDER

Petitioner is before this Court calling in question

proceedings in Crime No.35/2016 registered for offence

punishable under Section 138 of the Negotiable Instruments

Act, 1881 ('N.I.Act' for short).

2. Heard Sri.Anand.R.Kolli, learned counsel for

petitioner and Sri.Rajshekar Burji, learned counsel for

respondent.

3. Facts in brief are as follows:

On 08.12.2015 petitioner issues a cheque for

Rs.2,00,000/- in the name of Anjaneya Breading Farm and

Hatcheries. On 16.02.2016 when the cheque was presented, it

is dishonoured on the ground of insufficient funds. A legal

notice being issued on 02.03.2016 did not result in return of the

money. The complainant, therefore, registered a private

complaint invoking Section 200 of the Cr.P.C. The complaint is

registered in Crime No.35/2016, at which point in time, the

petitioner has knocked the doors of this Court in the subject

petition.

4. The learned counsel appearing for the petitioner

would urge a solitary contention that the firm in whose name

the cheque was issued is not made a party to the proceeding.

Therefore, the entire complaint gets vitiated. He would place

reliance on the judgment of the Apex Court in the case of

ANEETA HADA v. GODFATHER TRAVELS AND TOURS

PRIVATE LIMITED - (2012) 5 SCC 661.

5. On the other hand, learned counsel for the

complainant would contend that judgment is inapplicable to the

facts of the case, as the petitioner is neither a firm nor a

company and it is a sole proprietorship concern and seeks

dismissal of the petition.

6. I have given my anxious consideration to the

submissions made by the learned counsel for the respective

parties and perused the material on record.

7. The afore-narrated facts are not in dispute. The

only contention raised by the petitioner is, the company or the

firm is not made an accused and the complaint was not

maintainable. This submission is unacceptable on the plain

reading of Section 141 of the N.I.Act and its interpretation by

the Apex Court in the case of ANEETA HADA (supra).

8. Section 141 of the N.I.Act would become applicable

either to a company or to a partnership firm. The firm that the

petitioner represents is a Proprietorship concern and he is the

sole proprietor. Therefore, the judgment in the case of ANEETA

HADA cannot be pressed into service.

9. The Apex Court in the case of RAGHU

LAKSHMINARAYANAN V. FINE TUBES1 has held as follows:

"8. The concept of vicarious liability was introduced in penal statutes like the Negotiable Instruments Act to make the Directors, partners or other persons, in charge of and control of the business of the company or otherwise responsible for its affairs; the company itself being a juristic person.

9. The description of the accused in the complaint petition is absolutely vague. A juristic person can be a company within the meaning of the provisions of the Companies Act, 1956 or a partnership within the meaning of the provisions of the Partnership Act, 1932 or an association of persons which ordinarily would mean a body of persons which is not incorporated under any statute.

A proprietary concern, however, stands absolutely on a different footing. A person may carry on

(2007)5 SCC 103

business in the name of a business concern, but he being proprietor thereof, would be solely responsible for conduct of its affairs. A proprietary concern is not a company. Company in terms of the Explanation appended to Section 141 of the Negotiable Instruments Act, means any body corporate and includes a firm or other association of individuals. Director has been defined to mean in relation to a firm, a partner in the firm. Thus, whereas in relation to a company, incorporated and registered under the Companies Act, 1956 or any other statute, a person as a Director must come within the purview of the said description, so far as a firm is concerned, the same would carry the same meaning as contained in the Partnership Act.

10. It is interesting to note that the term "Director" has been defined. It is of some significance to note that in view of the said description of "Director", other than a person who comes within the purview thereof, nobody else can be prosecuted by way of his vicarious liability in such a capacity. If the offence has not been committed by a company, the question of there being a Director or his being vicariously liable, therefore, would not arise.

... ... ...

14. We, keeping in view the allegations made in the complaint petition, need not dilate in regard to the definition of a "company" or a "partnership firm" as envisaged under Section 34 of the Companies Act, 1956 and Section 4 of the Partnership Act, 1932 respectively, but, we may only note that it is trite that a proprietary concern would not answer the description of either a company incorporated under the Companies Act or a firm within the meaning of the provisions of Section 4 of the Partnership Act.

11. In the light of the inapplicability of the judgment in

the case of ANEETA HADA and the applicability of the case in

RAGHU LAKSHMINARAYANAN, petition lacks merit and is

dismissed.

In view of dismissal of the petition, I.A.No.1/2019 does

not survive for consideration, accordingly, stands dismissed.

SD JUDGE Mrk/-