IMPORTANT POINT
Provisions of Section 141 NI Act are not attracted in case of a proprietary firm.

K.N. Basha, J.—Learned counsel for the petitioner submits that the petitioner has come forward with this petition seeking for the relief of quashing the proceedings initiated against the petitioner alongwith other accused for the offence under Section 138 of the Negotiable Instruments Act.

2. It is contended by the learned counsel for the petitioner that the petitioner has been arrayed as second accused out of two is accused. It is submitted by the learned counsel for the petitioner that the first accused is the sole proprietrix and she only issued the disputed cheques involved in this matter and in view of the position of the first accused being the sole proprietrix, the question of implication of the second accused in respect of the offence committed by the sole proprietrix concern not at all arise. Learned counsel for the petitioner further contended that Section 141 of the Negotiable Instruments Act is not attracted. The said provision relates only in respect of a “company” or a “partnership firm” and not in respect of the “proprietary concern” and as such the petitioner being the second accused, he cannot be vicariously held responsible for the offence said to have been committed by the first sole proprietary concern. Learned counsel for the petitioner also placed reliance on the decision of the Hon’ble Supreme Court reported in Raghu Lakshminarayanan v. Fine Tubes1 in support of his contention and contended that a “proprietary concern” is not covered under Section 141 Explanation and Section 138 of the Negotiable Instruments Act and as such the vicarious liability of the persons other than the proprietor does not arise.

3. Per contra, Mr. M. Ravi, learned counsel appearing for the respondent vehemently contended that there is specific allegation against the petitioner herein for the fact that he also actively participated in the proprietary concern. Therefore, it is contended by the learned counsel for the respondent that both the accused are jointly and severally liable to pay the amount towards the amount dishonoured in this matter. It is further submitted by the learned counsel for the respondent that as a matter of fact that the petitioner was doing the entire business in the Binami name, his wife, the first accused in this case. Therefore, it is contended by the learned counsel for the respondent that the petitioner is also liable to face the trial and if at all any point to be argued, the same can be raised at the time of fullfledged trial and hence the above quash petition is liable to be dismissed.

4. I have carefully considered the rival contentions put forward by either side and also perused the impugned complaint filed in this case and other materials available on record.

5. It is seen that the petitioner has been arrayed as A2 out of two accused in this case. The first accused is none else than the wife of the second accused in this case. Even as per the allegation and averment contained in the complaint, the first accused is the sole property the concern called “Kamakshi Enterprises” and it is also not disputed and even specifically mentioned in the complaint to the effect that it is only the first accused issued the disputed cheques involved in this matter. In paragraph 5, it is specifically mentioned that the first accused issued three cheques and on the presentation of those three cheques, the cheques were dishonoured and thereafter once again at the request of the above accused, the complainant represented three cheques for payment and they were returned unpaid with an endorsement “Payment stopped by the Drawer”. Though, it is also mentioned that the second accused, being the husband of the first accused, actively participating and managing the business of the said concern along with the first accused, the said allegation itself is not sufficient to implicate the second accused in view of the admitted fact that the first accused is the sole proprietrix of the concern. Therefore, the first accu