IMPORTANT POINT
Where the payee is a proprietary concern, the complaint can be filed: (i) by the proprietor of the proprietary concern, describing himself as the sole proprietor of the payee: (ii) the proprietary concern, describing itself as a sole proprietary concern represented by its sole proprietor; and (iii) the proprietor or the proprietary concern represented by the attorney-holder under a power of attorney executed by the sole proprietor.

Sunil Gaur, J. — Petitioner has been summoned as an accused in complaint case No. 2245/01 under Section 138 of Negotiable Instruments Act titled M/s Royal Trading Company v. Ajay Dhir and in this petition, he has sought quashing of the summoning order dated 1lth August, 2005. The grounds taken for quashing of the impugned order of summoning are that the attorney of respondent No. 2, proprietary concern cannot depose and to support this stand, reliance has been placed upon a judgment of the Apex Court rendered in case of Janki Vashdeo Bhojwani and Anr. v. Indusind Bank Ltd. and Ors.1 It has also been urged on behalf of the petitioner that the summoning order is bad in law as it discloses non-application of mind and for this proposition, reliance has been placed on the case Pepsi Food Ltd. and Another v. Special Judicial Magistrate and Ors.2 The next contention of the petitioner is that the affidavit filed by way of evidence has not been duly executed and so is not admissible. To state so, reliance has been placed upon case of M/s Miraj Marketing Corporation v. M/s Vishaka Engg. and Anr.3

2. Whereas, on the other hand, learned counsel for respondent No.2 has placed reliance upon the case of M/s Shankar Finance and Investment v. State of Andhra Pradesh and Ors.4 to contend that a power of attorney holder can depose and it is pointed out that the judgment in the case of Janki Vashdeo (Supra) has been considered and distinguished in the latest judgment of the Apex Court. It is submitted on behalf of the contesting respondent that the alleged defect in the affidavit filed is a mixed question of law and fact and the same cannot be pre-judged at this stage and that the summoning order is perfectly legal and there is nothing wrong in it.

3. Nothing else is urged by either side.

4. After having heard both the sides and upon perusal of the record of this case, I find that the foremost contention raised in this petition is about attorney being incompetent to depose on behalf of the proprietor of the proprietary concern. In the case of M/s Shankar Finance (Supra), judgment rendered in the case of Janki Vashdeo (Supra) has been distinguished and it has been held as under:

“The next question is where a proprietary concern carries on business through an attorney holder, whether the attorney holder can lodge the complaint? The attorney holder is the agent of the grantor. When the grantor authorizes the Attorney Holder to initiate legal proceedings and the attorney holder accordingly initiates legal proceedings, he does so as the agent of the grantor and the initiation is by the grantor represented by his attorney holder, and not by the attorney holder in his personal capacity. Therefore, where the payee is a proprietary concern, the complaint can be filed: (i) by the proprietor of the proprietary concern, describing himself as the sole proprietor of the ‘payee’; (ii) The proprietary concern, describing itself as a sole proprietary concern, represented by its sole proprietor; and (iii) the proprietor or the proprietary concern represented by the attorney-holder under a power of attorney executed by the sole proprietor.”

5. In the instant case, the complaint in question has been filed in the name of the proprietorship concern and has been filed through its attorney. Para one of the said complaint clearly mentions that Smt. Shashi Gupta is the proprietor of the proprietorship firm and Shri Sunil Gupta is the working Manager of the complainant firm and is fully conversant with the facts of the case and he has been authorized by Smt. Shashi Gupta, owner by a special power of attorney.

6. Prima facie, the present case falls within the third category as highlighted in the case of M/s. Shankar Finance (Supra) referred above. As regards the evidence filed by way of affidavit being defective, the same is mixed question of fact and law which is not required to be determined by this Court by exercising inherent powers under Section 482 of the Cr