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TMI Blog2022 (12) TMI 233X X X X Extracts X X X X X X X X Extracts X X X X ..... ing and Components were dishonoured with remarks "account closed" vide three different memos of even date 02.06.2016. The impugned complaint came to be filed on 13.7.2016 against the present petitioners. Consequent thereto, summoning order dated 14.07.2016, Annexure P-3, was issued, whereby they were summoned. Submissions: 4. Learned counsel for the petitioners had submitted that M/s Royal Pressing and Components Private Ltd. and Royal Pressing and Components, a proprietorship concern, are two separate legal entities, with petitioner no.2, as Director and Proprietor thereof. The cheques, the dishonour of which, has led to filing of the complaint had been issued by the Proprietorship concern-M/s Royal Pressing and Component operating from 436-C, Shri Developers, Industrial Estate, Mahuakhera Ganj, Kashipur, Uttrakhand and not by petitioner No.1 company, which carries its operations from I-36, Site -C, Greater Noida, UP. His solitary legal submission while making a reference to the provisions of Section 138 of the Act was that, no other person except the drawer of the cheque from whose account the cheque has been dishonoured can be held liable to face prosecution, as has been held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order, are liable to be quashed and he thus rested his case. 8. Opposing the petitions, learned counsel for the respondent submitted that the hyper-technical objection taken by the learned counsel for the petitioners is that in place of M/s Royal Pressing and Components Pvt. Ltd. the proprietorship firm ought to have been arrayed as an accused, on the account of which, the cheques were drawn, is not tenable. In this regard it was his submission that when admittedly the company and the firm are being managed by petitioner No.2, in his capacity as Director and Proprietor, therefore the complaint is maintainable. Given that, the summoning order has been validly passed. He further submitted that accused No.2 (petitioner No.2 herein) had signed and issued the cheques, in question. His signatures are clearly identifiable from those appended to the present petition, affidavit in support thereof, as also the Vakalatnama and the same was admitted by the learned counsel for the petitioners. Even otherwise, non-arraying of the firm is not fatal, as per settled law. He further submitted that the address of the private limited company as also the proprietorship firm is the same, being plot No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ower of attorney in this petition. 11. Submissions of the learned counsel appearing on behalf of the respective parties were heard at length and the material on record considered. 12. At the outset, a reference is made to the response of learned counsel for the petitioners to a pointed query posed during the course of hearing, admitting that accused No.2 in the complaint and petitioner No.2 in the present petition are the same person, whose name somehow due to typographical error or otherwise has been shown differently. Analysis: 13. Before embarking to delve in the issues for determination in the present case, it would be apposite to advert to the chequered factual matrix. The admitted facts that emanate are namely; petitioner No.2 is both, a Director of petitioner No.1 company as well as the sole proprietor of the firm. The cheques signed by petitioner No.2, as not denied, rather admitted, were drawn on an account of the proprietorship firm maintained by him. Instead of filing a complaint against the firm, as stated in para 3 of the petition, the same has been filed against petitioner No.1- private limited company. Invoice Mark 'A', issued by the proprietorship firm h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aintained by him with a banker; ii) for the payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability; and iii) the said cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account. 16. In light of the aforesaid, a person who is the signatory to the cheque which is drawn by that person on an account maintained by him and the same has been issued for the discharge, in whole or in part, of any debt or other liability, which has been returned by the bank unpaid, such person can be said to have committed an offence. 17. Section 141 of the Act, is applicable when an offence is committed by companies. It reads thus: "141 -Offences by companies. (1) If the person committing an offence under section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 118(a) and 139, we now summarise the principles enumerated by this Court in the following manner: 25.1. Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability. 25.2. The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. 25.3. To rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely. 25.4. That it is not necessary for the accused to come in the witness box in support of his defence. Section 139 imposed an evidentiary burden and not a persuasive burden. 25.5. It is not necessary for the accused to come in the witness box to support his defence." 20. It can be adduced from the foregoing, that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 141 of the Negotiable Instruments Act have no applicability in a case involving the offence committed by a proprietary concern." 23. Still further, in M. M. Lal vs. State NCT of Delhi 2012 (4) JCC 284, the High Court of Delhi while following the dictum of Hon'ble The Supreme Court of India, held as under:- "It is well settled that a sole proprietorship firm has no separate legal identity and in fact is a business name of the sole proprietor. Thus, any reference to sole proprietorship firm means and includes sole proprietor thereof and vice versa. Sole proprietorship firm would not fall within the ambit and scope of Section 141 of the Act, which envisages that if the person committing an offence under Section 138 is a company, every person who, at the time of offence was committed, was incharge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. Company includes a partnership firm and any other association of individuals. The sole proprietorship firm would not fall within the meaning of partnership firm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused and admittedly, it is the case of the petitioners themselves that in the present case, cheques were drawn on the account of the proprietorship concern on the account on which the cheques in question were drawn on the account maintained by the sole proprietor of sole proprietorship firm- M/s Royal Pressing and Components, who signed the same. There is no denial that he is not the sole proprietor of the aforesaid firm or that he did not sign the cheques in question, the legal notice of demand was sent by registered AD post at the address as mentioned in Annexure P-5, which is the Central Excise registration certificate as appended and relied upon by the petitioners themselves and is the same address as that of petitioner No.2, mentioned in this petition and in the complaint, but was refused to be accepted by him, which as per Section 27 of the General Clause Act gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post, unless and until the contrary is proved by the addressee, held by Hon'ble The Supreme Court of India in case of C.C. Alavi Haji Vs Palapetty Muhd. and another (2007) 6 SCC 555. Conclusio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leading to a presumption as envisaged in Section 118 of the Act legally inferring that the cheque was drawn for consideration on the date which the cheque bears and Section 139 of the Act enjoins on the Court to presume that the holder of the cheque received it for the discharge of any debt or liability, the burden of which was on the accused to rebut the said presumption, as held in the cases of Rangappa, K. Bhaskaran and Triyambak S.Hegde (supra). 31. Hon'ble The Supreme Court of India in the case of Surinder Singh Deswal vs. Virender Gandhi , reported as (2019) 3 SCC (Crl.) 461, while interpreting Section 148 of the Act observed that if such tactics are permitted, the very object and purpose of the enactment of Section 138 of the Act would be frustrated. 32. Given the peculiarity of facts and circumstances as having referred to herein before and after giving thoughtful consideration to the submissions of the respective counsels, the legal provisions as well as the law enunciated, quashing of the complaint against petitioner No.2 at a pretrial stage would prejudice the complainant, a view finding strength from the observations of Hon'ble The Supreme Court in the case of Rathis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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