The single judge bench of Justice Sureshwar Thakur of the Punjab and Haryana high court in the case of Sardar Bhupinder Singh Vs M/S Green feeds through its partner Vipin Kumar held that when the arraigning of the sole proprietary concern rather was a condition precedent for making the complaint well constituted, as it becomes the principal offender, and, with its remaining un-impleaded, as such, the absence of its impleadment cannot make the instant complaint to be well constituted, nor, any valid prosecution can in its absence, be drawn, even against the accused petitioner, who can be assigned only a vicarious liability along with it.
BRIEF FACTS
The factual matrix of the case is that the accused- petitioner issued the cheque of Rs 5,50,000/- to the respondent toward the purported discharge of contractual, or, other legal liabilities, as entered into amongst the concerned. When the cheque was presented, it was dishonored and the statutory notice was served to the petitioner and learned Judicial Magistrate concerned, making application of mind to the complaint, and, to the documents/material appended therewith, besides upon his making an application of mind to the preliminary evidence, as became adduced by the complainant, rather proceeded to issue a summoning order upon the accused-petitioner herein.
The learned counsel appearing on behalf of the petitioner contended that the complaint is defective because there is no suing of the sole proprietary concern, and it also argues that the suing of the sole proprietary entity is a condition precedent for making the complaint well constituted. It was further contended that the arraignment of the sole proprietary entity concerned was a dire statutory necessity for well maintaining the prosecution under Section 141 of 'the Act,' as the sole proprietary entity concerned is the principal offender, whereas the other natural, or, non juristic persons, can become arrayed as an accused alongside it, merely on the touchstone of vicarious liability becoming attracted upon them, and, as arises from the dishonor of the negotiable instrument.
The learned counsel appearing on behalf of the respondent has contended that the careful reading of the provisions of Section 141 of 'the Act' reveals that they are not applicable to a single proprietary entity in question, and as such, he contends that the petition complaint instituted in the name of the accused petitioner herein, as well as his being described as the proprietor of M/s. Thind Traders, is a valid motion for the drawing of a valid prosecution against the accused petitioner herein, qua an offence, constituted under Section 138 of the negotiable instrument act.
COURT’S OBSERVATION
The hon’ble court stated that Clause (a) of the explanation as occurs in Section 141 of 'the Act' describes, a 'Company' to not only include any corporate body, but also makes a firm, or, other association of individuals, to become included within the realm of statutory coinage 'Company', and, besides when clause (b) thereof, when defines a 'Director', it makes the said statutory phrase, to in relation to a firm, to also include a partner in a firm. If so, when the statutory signification assigned to a 'Company', does visibly cover not only any corporate body, but also covers a firm, or other association of individuals, therefore, not only a corporate entity either private, or, public limited becomes a 'Company', for the purpose of application thereons of Section 141 of 'the Act', but also a firm, or, other association of individuals, do also, become covered by Section 141 of 'the Act', besides a partner in a firm when is given the colour of a Director of a firm, also does become covered for the relevant purpose.
The hon’ble court held that in consequence, even the sole proprietary entity namely M/s Thind Traders, though is obviously solitarily owned by Sardar Bhupender Singh, yet, the said juristic person, or, legal entity rather becomes a person committing an offense under Section 138, and, besides the said juristic person, is also a 'Company'. Therefore, not only the juristic entity concerned, was amenable to being arrayed as an accused in the petition complaint, but also all those persons responsible for the sole proprietary concern, for the conduct of its business were also required to be arrayed as accused in the memo of parties of the petition complaint.
The court further relied upon the judgment titled Aneeta Hada Vs. M/s Godfather Travels and Tours Pvt. Ltd.
At last, the petition is allowed and the complaint under section 138 of the NI Act and the summoning order both are quashed and set aside.
CASE NAME- Sardar Bhupinder Singh Vs M/S Green feeds through its partner Vipin Kumar
CITATION- CRM-M-54111-2021
CORUM- Justice Sureshwar Thakur
DATED- 26.08.22
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