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TMI Blog2011 (3) TMI 1472X X X X Extracts X X X X X X X X Extracts X X X X ..... nal Revision Application No. 656 of 2007, dated 18-2-2008.) - - - Dated:- 3-3-2011 - P. SATHASIVAM AND DR. B.S. CHAUHAN, JJ. Shankar Chillarge Shekhar Naphade, Satyaji A. Desai, Prashant R. Dahat, Somanath Padhan, Ms. Anagha S. Desai, Viraj Kadam, Pinaki Addy, Suhas Kadam D.M. Nargolkar, Ms. Asha Nair and Ravindera Keshavrao Adsure for the Appearing Parties. JUDGMENT Dr. B.S. Chauhan, J. - Leave granted. This appeal has arisen out of judgment and order dated 18-2-2008 passed by the High Court of Judicature at Bombay in Criminal Revision No. 656 of 2007 by which the High Court has set aside the judgments and orders of the trial court as well as of the appellate court convicting the respondent No. 1 for the offences punishable under section 138 of the Negotiable Instruments Act, 1881 ('the Act of 1881') and sentencing him for the period, till the rising of the court and to pay compensation of a sum of Rs. 7,00,000. Failing which, the respondent would serve simple imprisonment for a period of six months. 2. The facts and circumstances giving rise to this case are that the appellant complainant claimed to be the sole proprietor of the Firm, namely, Vijaya Autom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation No. 656 of 2007 before the High Court which has been allowed vide judgment and order dated 18-2-2008 (impugned) only on the ground that the appellant could not produce any evidence to establish that he was the sole proprietor of the proprietary concern in question. Hence, this appeal. 7. We have heard Shri Shekhar Naphade, learned senior counsel for the appellant, Shri Viraj Kadam, learned counsel for respondent No. l and Shri Shankar Chillarge, Additional Advocate General for respondent No. 2 and perused the record. 8. All the three courts below have dealt with the issues elaborately and recorded the following findings of fact : ( i )The cheque had been issued by the respondent No. l in favour of the Firm concerned towards discharge of pre-existing liability and not as security. ( ii )The substantive sentence of imprisonment in default of payment could be imposed. So far as the findings on the aforesaid two issues are concerned, the same are not under challenge before us. Learned counsel appearing for the respondents have accepted the aforesaid findings. 9. The only issue involved herein is as to whether the appellant owns the said firm, i.e. , whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay Automobiles, having address at Sector 29, Dronagiri Node, Uran, Distt. Raigad, take oath and state on solemn affirmation as under.... I state that in due discharge of legal liability of the accused as mentioned in foregoing paras, the accused issued one cheque dated 28th April, 2005 in my name, i.e. , in the Name M/s. Vijaya Automobiles which was drawn on Development Credit Bank, Kurla Branch, Mumbai-70 bearing Cheque No. 490592, for Rs. 7,00,000." Relevant part of his cross-examination reads as under:- "It is true that till today I had not produced any documentary evidence to show that I am owner of Vijaya Automobiles .Till today I had not produced any documentary evidence to support." 15. The complainant had also examined Shri S. K. Sharma, owner of Vikas Travels under whom the respondent No. l had been working as a sub-contractor. In his cross-examination, Shri S. K. Sharma also stated as under : "I have no documentary evidence to show that complainant Milind Shripad Chandurkar owns the petrol pump." l6. 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of 1881 but the case shall be governed by the general law, i.e. , the Act 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. 23. The Court in Shankar Finance Investments case (supra) placing reliance on earlier judgments, particularly, in Janki Vashdeo Bhojwani v. Indusind Bank Ltd. [2005] 2 SCC 217, held that the General principles of company law or civil law would apply for maintaining the complaint under section 138 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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