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TMI Blog1996 (3) TMI 568X X X X Extracts X X X X X X X X Extracts X X X X ..... tions. Since in both cases the parties are same and are also represented by same advocate and involve common question of law and facts, are heard and disposed of by this common order at notice stage on perusal of record and proceeding received from trial Court. 2. The applicant/original accused is dealing in chemical business and is sole proprietor of Padmavati Sales Corporation whereas the opponent No. 1/original complainant is also doing chemical business as sole proprietor in the name of Asim Agencies. 3. According to the complainant/opponent No. 1, in response to an oral order placed on 25.2.1992, goods worth ₹ 1,01,500/- were sold and delivered to the applicant/accused vide Invoice No. 104 of 1991-92 dated 25.2.1992, Ex. 4. The applicant/accused gave cheque No. 384270 dated 8.4.1992 drawn on the Co- operative Bank of Ahmedabad, for ₹ 1,01,500/- towards payment of said invoice. Unfortunately, on being presented for realisation through opponent No. 1's banker, Nutan Nagrik Sahakari Bank Limited, was returned dishonoured and, therefore, following due procedure prescribed under law filed Criminal Case No. 1361 of 1992 under Section 138 of Negotiable Instrumen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has also been defined in General Clauses Act under Section 3(42) which is similar to that of Section 11 of Indian Penal Code. According to this definition, any company or association or body of persons is recognised as legal entity or juridic person. This definition does not include proprietor. Hence a proprietary concern is not a legal entity or juridic person. A proprietary concern is synonym of proprietor. In fact, the proprietor is the person who does business but for trading convenience business is done in the name of proprietary concern. Thus the proprietary concern is not an independent, legal and juridic entity having legal recognition in the eye of law. Therefore, neither can initiate any proceedings nor proceedings be initiated against it. In case proprietary concern the proprietor is always an affected person who can either indict or be indicted. Keeping in mind this legal position, the present proceedings have been rightly initiated by proprietor against accused proprietor. Since proprietary concern has no legal entity, question of its being indicted first and then the proprietor does not arise. Interestingly, Mr. Gupta who advances this contention, by his own conduct h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eques are for valid consideration and in discharge of liability. Apart from this fact, when any negotiable instrument has been given or executed, a presumption can be raised under Section 118 of the Negotiable Instruments Act that the negotiable instrument was made or drawn for valid consideration. Of course, this is rebuttable assumption but nothing has been produced nor any evidence has been led to rebut this presumption. In this case, other circumstances about valid consideration are so strong that even court need not raise presumption in that regard. The opponent No. 1/original complainant has proved sale and delivery of goods by cogent and concrete documentary evidence. The amount mentioned in the cheques exactly tally with the figure of the invoices in question and, therefore, cheques shall be deemed to have been given towards payment of bills vide which goods are sold and delivered and thus have been in discharge of legal dues and liability. Assuming that the cheques are given as advance payment then the cheques would not have been for the exact amount tallying with the amount of invoices. Furthermore, advance payment is always made prior to the transaction whereas in both t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ention is also raised that the cheques were never sent for acceptance and, therefore, question of dishonour does not arise. This is again a question purely related to facts. The learned trial Court has on the basis of documents placed before it has come to positive conclusion that cheques were sent for realisation and have been returned with endorsement refer to drawer as is evident from Ex. 9 in Criminal Case No. 1362 of 1992 and Ex. 8 in Criminal Case No. 1361 of 1992 the memo issued by applicant's bank. Otherwise also this question cannot be agitated in revision application. 12. One more legal contention has been raised by Mr. Gupta, the learned advocate for the applicant, that no legal notice as contemplated under sub- clause (b) to proviso to Section 138 of the Negotiable Instruments Act was ever served upon the applicant, hence proceedings are vitiated. From the record it clearly transpires that notice Ex. 11 dated 26.4.1992 was sent by Registered Post at the registered address of the applicant/accused in Criminal Case No. 1361 of 1992 whereas at Ex. 10 in Criminal Case No. 1362 of 1992. The notice was sent by Registered Post A.D. and the acknowledgement receipt duly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ures by itself. But it can definitely compare the signatures in light of other admitted evidence on record. In this case, I have gone through the judgment and nothing can be found that the Court by becoming expert and comparing signatures has arrived at any particular conclusion. The Court has not made any observation like an expert's opinion. The Court has not at all based its finding on such evidence and, therefore, this contention has also no force in the eyes of law. Under law the Court has power to compare signatures/handwriting strengthening its finding based on other cogent material and evidence on record. Therefore, there is nothing wrong if handwritings are compared to strengthen finding. 14. Basically, dishonour of cheque is a civil wrong arising out of breach of contract and, therefore, becomes subject-matter of civil remedy. However, as held by the Supreme Court in the case of ET and TD Corporation Limited v. M/s. Indian Technologists and Eng. (Electronics) Pvt. Ltd., 1996(1) Recent Criminal Reports 593 : 1996(1) JT (SC) 693, object of bringing Section 138 on statute appears to be to inculcate faith in the efficacy of banking operations and credibility in transac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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