TMI Blog2022 (2) TMI 445X X X X Extracts X X X X X X X X Extracts X X X X ..... mention the provision of law under which it has been moved presumably because there is no such provision. In IN RE : EXPEDITIOUS TRIAL OF CASES UNDER SECTION 138 OF N.I. ACT 1881. [ 2021 (4) TMI 702 - SUPREME COURT] , the Hon'ble Supreme Court has held that Section 258 cannot come into play in respect of the complaint filed under Section 138 of the Act. Affirming the earlier decisions in the Adalat Prasad (supra), the Hon'ble Supreme Court held that the Trial Court cannot be conferred with inherent power either to review or recall the order of issuance of process. Therefore, keeping in view the law laid down by the Hon'ble Supreme Court, the conclusion of the learned Court below that it has no jurisdiction to recall or review the order passed by itself summoning the accused does not suffer from any legal infirmity and needs no interference by this Court in exercise of its revisional power under Section 397/401 Cr.P.C. A proprietorship concern is not a juristic person. It is merely a trade name used by a person for doing his business. A person may carry on a business in the name of the proprietorship concern but he being the proprietor of the business, would be sol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6823 of 2019 (M/s Seven Seas Net Mart Sales Pvt. Ltd. vs. M/s Neel Jewellers and another) under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ''the Act') rejecting the application filed by the revisionists for being exonerated of the liabilities/obligations mentioned in the complaint. 3. The facts of the case, briefly stated, are that on 19.08.2019 the opposite party no. 2-complainant filed a complaint under Section 138 of the Act inter alia stating that the revisionist no. 1 is a proprietorship firm in the proprietorship of the revisionist no. 2, who is a regular customer of the complainant company. During the course of business, the revisionist no. 1 took supply of some items from the complainant and to pay the price of the goods it issued some cheques. A cheque bearing no. 044778 dated 06.06.2019 drawn on Allahabad Bank, City Office Branch, Gorakhpur for ₹ 3,00,000/- only, which was signed by the revisionist no. 2 was dishonored with the endorsement payment stopped by the drawer . It is stated in the complaint that the action of the revisionists is punishable under Section 138 read with Section 141 of the Act and the revisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ionist no. 1 is neither a company registered under the Companies Act nor is it a firm and, therefore, Section 141 of the Act does not apply to the revisionist no. 1. He submitted that for this reason the complaint is not maintainable and the revisionists ought to be exonerated of the liabilities under the complaint. 9. The opposite party no. 2 filed objections against the aforesaid application inter alia stating that the complaint under Section 138 of the Act has to be decided by the Court through a summary trial. There is no provision in law for filing of a discharge application during a summary trial. Besides this, Section 258 Cr.P.C. also does not apply to cases arising out of a complaint. On this ground, the application filed by the revisionists is not maintainable and is liable to be dismissed. It was further stated in the objections that the Trial Court does not have the jurisdiction to recall or review the order passed by itself and it has no power to recall or review an order passed by it summoning the accused-persons. 10. After hearing the aforesaid application of the revisionists and the objections against it filed by the opposite party no. 2, the learned Court belo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned counsel for the revisionists, that the application for discharge was filed on the direction issued by this Court in the order dated 22.02.2021 passed in Application under Section 482 Cr.P.C. No. 1901 of 2021, is apparently wrong, as by means of the aforesaid order, this Court had merely granted a liberty to the revisionists to move an application and the application was directed to be decided in accordance with the law, which includes the law regarding its maintainability. Therefore, the learned Court below has not committed any illegality in examining the maintainability of the application. 19. As has already been noted above, the application does not mention the provision of law under which it has been moved presumably because there is no such provision. 20. In Adalat Prasad vs. Rooplal Jindal others; (2004) 7 SCC 338, the Hon'ble Supreme Court was pleased to declare the law in the following words: - But after taking cognizance of the complaint and examining the complainant and the witnesses if he is satisfied that there is sufficient ground to proceed with the complaint he can issue process by way of summons under section 204 of the Code. Therefore what is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may, for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, pronounce a judgment of acquittal, and in any other case, release the accused, and such release shall have the effect of discharge. 23. In In Re: Expeditious Trial of Cases Under Section 138 of N.I. Act 1881 (supra), the Hon'ble Supreme Court has held that Section 258 cannot come into play in respect of the complaint filed under Section 138 of the Act. Affirming the earlier decisions in the Adalat Prasad (supra), the Hon'ble Supreme Court held that the Trial Court cannot be conferred with inherent power either to review or recall the order of issuance of process. Therefore, keeping in view the law laid down by the Hon'ble Supreme Court, the conclusion of the learned Court below that it has no jurisdiction to recall or review the order passed by itself summoning the accused does not suffer from any legal infirmity and needs no interference by this Court in exercise of its revisional power under Section 397/401 Cr.P.C. 24. Now I come to the second s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot a juristic person. It is merely a trade name used by a person for doing his business. A person may carry on a business in the name of the proprietorship concern but he being the proprietor of the business, would be solely responsible for all the actions and liabilities of the proprietorship concerned. It is correct that the provisions of Section 141 of the Act have no bearing to the present case where the revisionist no. 1 is not a company. 27. The stand taken by the revisionists in the application for discharge is that in para 11 of the complaint, a prayer has been made to punish the revisionists under Section 141 of the Act. No punishment is prescribed under Section 141 of the Act which has been reproduced above and the revisionists have not been summoned for being punished under Section 138 of the Act only and not under Section 141. 28. So far as the legal position of the revisionist no. 1 as proprietorship firm is concerned, the following pronouncements of the Hon'ble Supreme Court in Raghu Lakshminarayan vs. Fine Tubes; (2007) 5 SCC 103 throws light on the subject. The relevant observation of the Court is reproduced below: - The description of the accused in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt below has taken into consideration the affidavit of the complainant filed in support of the complaint under Section 200 Cr.P.C. and the documentary evidence filed by the complaint i.e., the original cheque in question, the memo issued by the Bank, a copy of the registered notice and the postal receipt, as evidence under Section 202 Cr.P.C. Sub Section (2) of Section 202 Cr.P.C. is not applicable to the proceedings of a complaint under Section 138 of the Act. 31. Section 145 of the Negotiable Instruments Act, 1881 provides as follows: - 145. Evidence on affidavit.-- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the evidence of the complainant may be given by him on affidavit and may, subject to all just exceptions be read in evidence in any enquiry, trial or other proceeding under the said Code. (2) The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein. 32. In In Re: Expeditious Trial of Cases Under Section 138 of N.I. Act 1881 (supra), the Hon'ble Supreme Court has been pleased ..... X X X X Extracts X X X X X X X X Extracts X X X X
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