( 1 ) THESE applications arise from Criminal Cases Nos. 1361 of 1992 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 Sec. 138 of the Negotiable instruments Act and sentenced to undergo simple imprisonment for one month and to pay fine of Rs. 25,000. 00, 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 Appeal Nos. 41 of 1992 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 Courts 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 advocates 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 also proprietor in the name of Asim agencies.

( 4 ) ACCORDING to the complainant/opponent No. 1, in response to an oral order placed on 25-2-1992, goods worth Rs. 1,01,500. 00 was sold and delivered to the applicant/accused vide Invoice No. 104/91-92 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. 00 towards payment of said invoice. Unfortunately, on being presented for realisation through opponent No. 1s banker, Nutan Nagrik sahakari Bank Ltd. , was returned dishonoured and, therefore, following due procedure prescribed under law filed Criminal Case No. 1361 of 1992 under Sec. 138 of Negotiable Instruments Act. Similarly, goods sold and delivered by opponent no. 1/original complainant to the applicant vide Invoice No. 105/91-92 dated 6-3-1992, Ex. 4, for Rs. 1,03,156. 00 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 Ltd. for realisation and, therefore, the opponent No. 1/original complainant filed another Criminal Case No. 1362 of 1992 under Sec. 138 of the Negotiable Instruments Act.

( 5 ) ON appreciation of evidence adduced, the learned trial Judge came to conclusion that offence punishable under Sec. 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 impleading the name of the trading concern under which both the parties are trading, that is, their proprietary concern. Mr. Gupta the learned Advocate for the applicants, has vehemently argued that since the cheques are given by the applicant proprietary concern in the name of proprietary concern of opponent No. 1 and, therefore, if at all any offence is committed, is committed by a proprietary concern against the complainant proprietor concern and as the complaint is filed in personal name, the same is not maintainable. On this count his arguments are two-folded : (I) The firm has to be indicted and then only the proprietor can be held guilty; (ii) In absence of impleading 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 in the name of proprietary