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TMI Blog2020 (12) TMI 1000X X X X Extracts X X X X X X X X Extracts X X X X ..... Proprietary concern, its proprietor being A2 N.Jai Ganeshen. A1 and A2 are one and the same person. The issuance of the cheque by A2 as Proprietor of A1 M/s.Varshini Traders would amount to issuance of the cheque by A2. The complaint of the respondent is not maintainable against A3. On the ground that A1 and A2 are same persons and that A1 is not a firm as per Section 141 of the Negotiable Instruments Act - Petition allowed. - Crl.O.P.Nos.14848 & 14849 of 2015 and Crl.M.P.Nos.1 & 1 of 2015 - - - Dated:- 17-9-2020 - THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR For the Petitioner : Mr.P.Muthusamy For Respondent : Mr.A.Ashwin Kumar, Legal Aid Counsel ORDER The petitioner/A3, who is facing trial in C.C.Nos.3439 3440 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t maintained by the respondent, the accused were due of ₹ 14,27,914/- to the respondent. In order to discharge the liability, the accused have issued seven cheques bearing numbers 000111, 000112, 000113, 000114, 000115 and 000116 for a sum of ₹ 2,00,000/- each and another cheque bearing number 000117 for a sum of ₹ 1,37,920/-, all drawn on Karur Vysya Bank, Chennai on 01.09.2014 toward part payment as per the ledger account and further undertook to clear up the dues in a short time. 6.When the respondent presented the said cheques for collection in his bank M/s.Wardhaman Cooperative Bank, Nagpur for encashment, the cheques were returned with an endorsement 'Funds Insufficient' on 06.09.2014 and the same was inti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10.It is further submitted that M/s.Varshini Traders/A1 being a sole Proprietorship concern, Section 141 of the Negotiable Instruments Act would not apply. In this case, M/s.Varshini Traders is a Proprietorship concern and A2/N.Jai Ganeshen is the Proprietor of M/s.Varishini Traders. Proprietary concern is not a firm. A firm is a partnership firm consisting of partners. In this case, A1/M/s.Varshini Traders is not a fir. It is only a proprietary concern. Only the drawer of the cheque can be prosecuted. As such the proceedings against the petitioner, who is said to be an authorized signatory is to be quashed. 11.In support of his contention, reliance was placed on the following judgments of this Court:- ● Anas Industries, Chen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same within the statutory period of 15 days after receipt of the legal notice. The other points raised by the learned counsel for the petitioner for quashing the proceedings, has to be decided during the trial. 14.This Court considered the rival submissions and perused the materials available on records. 15.In this case, A1 M/s.Varshini Traders is a Proprietorship concern, A2 N.Jai Ganeshen is the Proprietor of A1 and A3 is the wife of A2. A proprietary concern is not a firm. A firm is a partnership concern consisting of partners. In this case, the first accused is not a firm. It is only a proprietary concern. Only the drawer of the cheque can be prosecuted. In this case, the drawer of the cheques is A2. 16.Further, there is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entative of M/s. Sri Sivasakthi Industries, Madras, a Proprietorship concern and again in his personal capacity. 6.In the instant case, Anas Industries is the accused, and it is being represented by Ram Mohan. When Anas Industries is not a juridical person, it cannot be said that Ram Mohan can represent a non-juridical entity. 7.In the instant case, Anas Industries is the accused. Failure to make payment within specified time after the receipt of statutory notice becomes an offence, because such failure is an illegal act with requisite mens rea. Here, it cannot be said that Anas Industries can be attributed with any mens rea, when it is not a juridical person. 18.The complaint of the respondent is not maintainable against A3 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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