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GUJARAT HIGH COURT
R.R. Jain. J.
Satish Jayanthilal Shah -Petitioner
versus
pankaj Mashruwala -Respondent
Crl. Revision Application Nos. 190 & 191 of 1995
Decided on 11-3-1996
Held: 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. (Para 7)
Secondly, a juridic person always functions through human administrator, maybe director, manager or partner and the offence committed by such legal entity provides for imprisonment. Then such administrator only has to be convicted to serve out sentence as legal entity cannot be convicted to undergo imprisonment. Of course where only fine is provided juridic person can be indicted. (Para 8)
(ii) Negotiable Instruments Act, 1881 - Section 138, - Dishonour of cheque - Complaint u/s 138 - Body of cheque not written by drawer Issuance of cheque clearly admitted - Defence plea that cheques not voluntarily given in discharge of legal debt or liability - Not admissible in revisional jurisdiction - Question of fact not raised before trial court What is material signature of drawer or maker and not body writing of cheque.
Held: The opponent No.1/complainant has proved by ample evidence on record that goods were sold and delivered to the applicant in fulfilment of oral order and that cheques were given towards payment of goods sold therefore the cheques 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.
(Para 10)
(iii) Negotiable Instruments Act, 1881- Section 138 - Cheque given for future consideration - Valid consideration.
(iv) Evidence Act, Section 116 - Service of - Service through post - Correctness of address not in dispute - Despatch of notice by Registered Post - Presumption that notice reached and I delivered to addressee. (Para 13)
(v) Evidence Act, 1872 - Section 73 - Court has power to compare signatures/handwriting strengthening its finding based on other cogent material and evidence on record. (Para 14)
Result: Revision application dismissed. Applicant rightly convicted.
R.R. Jain, J. - These applications arise from Criminal Cases No. 1361 and 1362 of 1992 on the file of Metropolitan Magistrate (Court No. 15), Ahmedabad. In each case the learned Magistrate was pleased to hold the applicant guilty for commission of offence punishable under section 138 of the Negotiable Instruments Act and sentenced to undergo simple imprisonment of one month and to pay fine of Rs. 25.000/- in default, to undergo further simple imprisonment for one month. Aggrieved by the judgment and order of the learned Magistrate dated 14-10-1994. the applicant also preferred Criminal Appeals No. 41 and 42 of 1994. The same were decided by learned Additional City Sessions Judge (Court No.12) Ahmedabad on 1-5-1995, confirming the lower Court's order. Aggrieved by the concurrent finding of both the Courts below, the applicant/original accused has preferred the above revision applications.
2. 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.
3. 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.
4. According to the complainant/ opponent No. 1 in response to oral order placed on 25-2-1992. goods worth Rs. 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 Rs. 1,01.500/- towards payment of said invoice. Unfortunately, on being presented for realisation through opponent No. Is 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 Instruments Act. Similarly, goods sold and delivered by opponent No.1 / original complainant to the applicant vide Invoice No. 105 of 1991-92 dated 6-3 -1992. Ex. 4, for Rs. 1.03.156/- the applicant/accused gave Cheque No. 384258 dated 22-3-1992 drawn on the Co-operative Bank of Ahmedabad, for Rs. 1.03.156/- towards payment of said invoice. But the same was also returned dishonoured when presented through Nutan Nagrik Sahakari Bank Limited for realisation and. Therefore, the opponent No.1/ original complainant filed another Criminal Case No. 1362 of 1992 under Section 138 Of the Negotiable Instruments Act.
5. On appreciation of evidence adduced the learned trial Judge came to conclusion that offence punishable under Section 138 of the Negotiable Instruments Act has been committed by the applicant and thereby convicted as above in both cases.
6. Admittedly, original complaints have been filed in personal names without imp leading the names of the trading concern under which both parties are trading, that is their proprietary concern. Mr. Gupta, the learned Advocate for the applicants, have vehemently argued that since the cheques are given by applicant proprietary concern in the name of proprietary concern of opponent No.1. there fore, if at all any offence is committed, by a proprietary concern against the complainant proprietor concern and as complaint is filed in personal name, same is not maintainable. On this count his arguments are two folded:
I. the firm has to be indicated and then only the proprietor can be held guilty;
II. in absence of imp leading proprietary concern as complainant as well as accused, the application would not be maintainable.
7. It is true that in these matters, the original complainant is doing business in the name of proprietary concern, Asim Agencies, and the accused is also doing business
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