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2005(1) Bankmann 402
BOMBAY HIGH COURT
K.J. Rohee, J.
Maan Agro Centre — Petitioner
Versus
Eid Parry (India) Ltd.
and another — Respondents
Cri. Revision Appln. No. 74 of 2004
Decided on 23-12-2004
Counsel for the Parties:
For the Petitioner:V.P. Panpaliya, Advocate.
For the Respondent No. 1:R.V. Shiralkar, Advocate.
For the Respondent No. 2: S.B. Ahirkar, APP.
IMPORTANT POINT
Prosecution against proprietor representing the proprietorship concern or proprietorship concern represented by proprietor are one and the same.
Headnote:Negotiable Instruments Act, 1881—Section 138—Dishonour of cheque—Complaint against proprietorship concern—Amendment of complaint by way of correction in the name of accused—Permissibility—Initially name of proprietor not mentioned in the complaint—Whether accused was described as ‘MAC’ through its proprietor ‘AK’ or ‘AK’ the proprietor of MAC, it makes no difference—No prejudice caused to the proprietor ‘AK’ if change of name allowed—Revision Court rightly allowed the application.
Facts of the case:
A)Present appeals are filed by the accused against the order of Magistrate, who allowed the applications for amendment of name of the accused. In the present case, ‘MAC’ through its proprietor was described as an accused and initially the name of the proprietor ‘AK’ was not mentioned in the complaint. However, it is undisputed that ‘MAC’ is the sale proprietary concern and ‘AK’ is the only proprietor thereof. In this view of the matter whether the accused was described as ‘MAC’ through ‘AK’ or ‘AK’ the proprietor of ‘MAC’ will make no difference. It would not cause any prejudice whatsoever to the petitioner/accused.
B)The Court held that Revisional Court was fully justified in permitting the complainant to insert the name of ‘AK’ as the proprietor thereof. In the result, the revision is dismissed.
Result: Revision dismissed.
K.J. Rohee, J.— The petitioner/original accused preferred this revision petition against the Order dated 29.3.2004 passed by Additional Sessions Judge, Akola in Criminal Revision No. 73/2003 and for restoring the Order dated 14-2-2003 passed by Judicial Magistrate, First Class, 3rd Court, Akola in Summary Criminal Case No. 9192/99.
2. Respondent No. 1 (hereinafter referred to as the “complainant”) filed Complaint under Sections 138 and 141 of the Negotiable Instruments Act against the petitioner on the ground that the two cheques dated 31-7-1999 for Rs 1,00,000/- and Rs. 62,051/- issued by the petitioner in favour of the complainant were dishonoured and despite demand notice issued by the complainant to the petitioner, no payment was made.
3. By Order dated 3-1-2000, process was issued against the petitioner. In response to the process, the petitioner appeared before the concerned Magistrate. On 2-5-2001 the complainant moved an application (Exh. 31) for permission to correct the description of the petitioner. The complainant described the accused as Maan Agro Centre through its proprietor. By the said application, the complainant wanted to insert the name of the proprietor viz. Aminullah Khan. The said application was opposed by the petitioner.
4. On 31-10-2001, the petitioner moved an application (Exh. 34) for dismissing the complaint on the ground that the accused described in the complaint viz. Maan Agro Centre which is a proprietary concern, is not a juristic person. No complaint can be filed against such non-legal person. Thus the complaint was not tenable and should be dismissed.
5. The complainant opposed the application by stating that the name of the proprietor was not known to the complainant, that it was the duty of the Magistrate to find out the real offender and that the complaint was maintainable even in the absence of the name of the accused.
6. By the common Order dated 14-2-2003 below Exh. 31 and Exh. 34 the learned Magistrate decided both the applications. He dismissed the complainant’s application for correction in the description of the accused and allowed the application of the petitioner dismissing the complaint.
7. The complainant challenged the said Order by preferring revision against it. By Order dated 29-3-2004, the Revisional Court allowed the revision , set aside the Order below Exh. 31 and 34 and reversed the Orders below Exh. 31 and 34. The Revisional Court allowed the application moved by the complainant for correction in the description of the accused and rejected the application of the petitioner for dismissal of the complaint. The Revisional Court directed the Magistrate to proceed to decide the complaint in accordance with law. The petitioner has challenged the said Order by this revision petition.
8. The learned counsel for the petitioner submitted that the complainant was aware of the name of the proprietor of Maan Agro Centre because it is nowhere mentioned in the application (Exh. 31) that he was not aware of the name. He pointed out that on the contrary the application shows that due to oversight the name of the proprietor Aminullah Khan remained to be mentioned in the complaint and in Order to avoid technical complications, correction in the description of the accused was sought. The learned counsel for the petitioner pointed out that it was only in reply to the application (Exh. 34) wherein it was contended by the complainant that the name of the proprietor was not known to the complainant. He therefore, submitted that though the complainant was aware of the name of the proprietor, he chose to describe the accused as Maan Agro Centre through its proprietor without mentioning the name of the proprietor. He submitted that proprietary concern is not a juristic person and it cannot be prosecuted in its name. The person who is the proprietor of the proprietary concern, alone can be prosecuted. However, in the absence of the name of the proprietor, the complaint was liable to be dism
