The main legal point established in the judgment is that the proprietary concern is not a juristic person and therefore, the provision of Section 141 of the Negotiable Instruments Act, which deals with vicarious liability, is not applicable to a complaint filed against a proprietary concern.

V.L. Achliya, J.

By consent of the parties taken up for final hearing at the stage of admission.

2. By this application filed u/s 482 of Criminal Procedure Code ("Cr. P.C." for short), the applicant/original accused No. 2 has approached this Court with relief to quash and set aside the order dated 9/9/2011 passed by Metropolitan Magistrate 63rd Court at Andheri, Mumbai.

3. The applicant/original accused No. 2 ("the applicant" for convenience) has approached with the case that on the face of the averments made in the complaint, the learned Magistrate should not have issued process u/s 138 of Negotiable Instruments Act against the applicant. According to the applicant, the complaint itself discloses in uncertain terms that the complainant has filed the complaint against accused No. 1, as 'proprietary concern. The complainant has alleged that the applicant/original accused No. 2, is the Manager of the said proprietary concern and manage and control the business of the said proprietary concern. In view of the facts averred in the complaint and cheque in question admittedly issued by accused No. 1 under his signature as a proprietor of M/s. Petroline Corporation, the proprietary concern, the complaint discloses no cause of action to file the complaint u/s 138 a/w 141 of Negotiable Instruments Act, as against the applicant. According to the applicant, it is settled position in law that a proprietary concern is not juristic person and it has no distinct entity in law and as such provision of Section 141 of Negotiable Instruments Act, is not applicable in case of proprietary concern. It is, therefore, the contention of the applicant that the order passed by the learned Magistrate to issue process against the applicant and continuation of such proceeding amounts to a gross abuse of process of law and in order to meet the ends of justice, it is necessary to set aside the order of issuance of process and criminal proceeding to the extent of applicant in exercise of inherent jurisdiction of this Court u/s 482 of Cr. P.C.

4. I have heard the submissions advanced by learned counsel appearing for the applicant and learned AGP. Respondent No. 1, though served, failed to record his appearance.

5. Mr. Ghag, the learned counsel for the applicant by referring the contents of copy of the complaint, contended that the complaint discloses in clear terms that the cheque in question was issued by accused No. 1 with his signature as a proprietor of M/s. Petroline Corporation, the proprietary concern. The averments made in the complaint also reflect that the cheque in question of Rs.25,000/- which is allegedly dishonoured and leads to filing of complaint, was issued by accused No. 1 towards amount which is claimed to be due against the said proprietary concern. The learned counsel has further submitted that the complaint in question has not been filed alleging commission of offence u/s 420 of IPC. The complainant has stated in complaint that the complainant reserves their right to prosecute u/s 420, 418/120-B of IPC, separately. It is further pointed out that the process issued by the Magistrate is u/s 138 of Negotiable Instruments Act. In the order passed by learned Magistrate, there is no reference of issuance of process u/s 138 r/w 141 of Negotiable Instruments Act. In the light of the averments made in the complaint and the order passed by the learned Magistrate, the learned counsel has submitted that the order impugned is per se illegal and not sustainable in law as the same has been passed without proper application of mind and in a most casual manner. It is submitted that order of issuance of process is not sustainable in law as the complaint discloses no cause of action for issuance of process u/s 138 of Negotiable Instruments Act, as against the applicant. The learned counsel has submitted that it is a well settled position in law that the vicarious liability as contemplated u/s 141 of Negotiable Instruments Act, the concept have no applic