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TMI Blog2012 (3) TMI 676X X X X Extracts X X X X X X X X Extracts X X X X ..... he offence under Section 138 of the Negotiable Instruments Act, 1881 (in short 'the Act') and sentencing him to undergo rigorous imprisonment for two months and to pay fine of ₹ 40,000/- and in default to suffer further simple imprisonment for two months with a direction that out of the amount of fine, if realized, a sum of ₹ 24,600/- being the cheque/liability amount shall be payable to the complainant, the respondent herein, as compensation. 2. The facts of the case in brief are that the respondent (complainant) filed a complaint against the petitioner (convict) under Section 138 of the Act on the averments that he was running business of sale of cement bricks and other construction material in the name and style of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 313 Cr.P.C, wherein his defence was that of innocence, false implication and denial. However, he admitted service of legal notice upon him. According to the convict, he had no dealings with the complainant and did not owe any amount to him. In answer to question No. 6, he has submitted the following explanation:- I had given a blank cheque to Devi Ram and Sons and the payment of the same had already been made by me in cash. I did not owe any liability therefore, there is no question to make payment to the complainant on his demand through notice. 5. However, the convict did not lead any evidence. 6. After hearing the learned counsel for the parties, the learned Chief Judicial Magistrate proceeded to convict and sentence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it shall be appropriate to notice the dictum of law laid down by the Hon'ble Apex Court in Milind Shripad Chandurkar vs. Kalim M. Khan and Another, in paras 21 to 27 of the report, which are as under:- 21. This Court in Shankar Finance and Investments v. State of A. P. dealt with the issue involved herein elaborately and held that (SCC p.540, para 11) where the payee is a proprietary concern the complaint can be filed: (i) by the proprietor of the proprietary concern, describing himself as the sole proprietor of the payee ; (ii) the proprietary concern describing itself as the sole proprietary concern, represented by its sole proprietor; and (iii) the proprietor or the proprietary concern represented by the attorney-holder u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e holder in due course) 25. Thus, in view of the above, the law stands crystallised to the effect that a person can maintain a complaint provided he is either a payee or holder in due course of the cheque. 26. In the instant case, it is evident that the firm, namely, Vijaya Automobiles, has been the payee and that the appellant cannot claim to be the payee of the cheque, nor can he be the holder in due course, unless he establishes that the cheques had been issued to him or in his favour or that he is the sole proprietor of the concern and being so, he could also be payee himself and thus, entitled to make the complaint. The appellant miserably failed to prove any nexus or connection by adducing any evidence, whatsoever, worth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n that he is the sole proprietor of M/s Devi Ram and Sons, yet in cross examination he has admitted that on the day he was making statement in the court, he was not having any proof that he was sole proprietor of M/s Devi Ram and Sons. It is further stated by him that he did not remember as to when the cement was purchased by the convict from him. He had also not brought the copy of the bill book to the court. In further cross examination, he has denied that he has no concern with M/s Devi Ram and Sons and has volunteered that Devi Ram is his father. 13. In his statement under Section 313 Cr.P.C the convict denied that the complainant used to deal in the business of steel and cement known as M/s Devi Ram and Sons. He has also denied that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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