Proper authorization for filing a complaint by a company under Section 138 of the N.I. Act and the liability of the drawer of a dishonored cheque.

( 1 ) M/s. KVR Enterprises, Proprietor k. Subramanyam, resident of Katuru of krishna District preferred the present criminal revision case under Sections 397 and 401 of the Code of Criminal Procedure, 1973 ( cr. P. C. for short) against the judgment made in Criminal Appeal No. 158 of 1998 dated 13-12-2000 on the file of Metropolitan sessions Judge where under the conviction recorded under Section 138 of the Negotiate instruments Act, 1981 (for short, n. I. Act ) and sentence against the accused/petitioner to undergo rigorous imprisonment for a period of one year and to pay a fine of rs. 20,000/-, in default, to undergo simple imprisonment for a period of three months made in C. C. 242 of 1995 on the file of metropolitan Magistrate dt. 29-10-1998 is confirmed.

( 2 ) THE brief facts that are necessary for the disposal of the present criminal revision case may be stated as follows: the complainant company is doing business at Vijayawada in Cement whereas the accused is a Cement Retail Dealer doing cement business at Eluru. The accused opened a Khata in the complainant s branch office at Vijayawada and purchased cement on credit basis from time to time and he was libel to pay a sum of Rs. 3,58,251-50 ps. towards principal amount as per the katha copy. The accused gave a cheque bearing No. 089993 dated 28-1-1993 for rs. 3,37,736/- drawn on Andhra Bank, vuyyuru towards part payment, stating that it would be honoured as soon as it is presented to the bank. Believing the same the complaint presented the same for collection in the bank but the cheque was returned to the complainant on 3-2-1993 with an endorsement "funds insufficient". The allegation of the complainant is that the accused with a dishonest intention gave the aforesaid cheque and therefore the complainant got issued statutory legal notice on 15-2-1993 intimating the fact of dishonour of the cheque and demanded the accused to pay katha debt within 15 days from the date of receipt of notice. The accused, having received the notice on 19-2-1993, failed to pay the amount covered by the cheque. Therefore the accuse committed an offence punishable under Section 138 of the N. I. Act.

( 3 ) TO substantiate the case of the complainant, 4 witnesses were examined and 14 documents were marked. On behalf of the accused, the accused himself got examined as D. W-1 and got marked Ex. D-1. The trial court accepted the evidence of the complainant and came to the conclusion that the accused committed an offence punishable under Section 138 of the N. I. Act and accordingly convicted and sentenced the accused as aforesaid.

( 4 ) LEARNED counsel for the petitioner accused contended that the complaint against kvr Enterprises as such is not maintainable as the proprietary concern is not a legal entity or justice person; that none of the Directors or the Managing Director of the complainant company singed on the complaint; that there was no proper authorization and that the magistrate has no jurisdiction to impose a fine of Rs. 20,000/ -. Therefore, he prays to set aside the conviction and sentence recorded against the petitioner-accused, in support of his contention, the learned counsel also relied upon some decision stating that the complaint cannot be maintained as the proprietary concern has no legal entity.

( 5 ) ON the other hand, learned counsel for the respondent No. 1 contended that on proper authorization by the complainant company it was signed by P. W. 1. As P. W. 1 left the office, P. W. 4 herein was duly authorized to appear in the case on behalf of the complainant and therefore though the complainant company cannot file the complaint, somebody who is an authorized person can file the complainant and it need not necessarily be signed by one of the directors or the Managing Director. He also contended that both proprietorship and proprietor are one and the same and both things convey the same meaning the therefore the decisions relied upon by the learned counsel for