The proprietor of a sole proprietorship holding liability for a dishonored cheque under Section 138 NI Act does not require the business entity to be arrayed as an accused.

JUDGMENT :

R.K. PATTANAIK, J.

1. Instant revision under Section 401 Cr.P.C is filed by the petitioner challenging the impugned judgment in Criminal Appeal No.8 of 2010 dated 1^st December, 2010 of the learned Additional Sessions Judge, Rourkela in dismissing the appeal and confirming the order of conviction and sentence dated 14^th December, 2009 directed by the learned J.M.F.C., Panposh, while disposing the complaint in 1.C.C. Case No.275 of 2007 for an offence under Section 138 of the NI Act on the grounds inter alia that such decision suffers from infirmity and hence, therefore, the same is liable to be set aside.

2. The opposite party as complainant filed the complaint in 1.C.C. Case No.275 of 2007 for commission of an offence punishable under Section 138 of the NI Act in the court of learned J.M.F.C., Panposh at Rourkela by the petitioner alleging therein that he had given a friendly loan of Rs.6 lac to the latter for developing his business in the name and style of M/s Laxmi Traders dealing with Cement Agency etc. and when the same was not refunded in time, instead, a cheque was issued and on its presentation before the Bank failed to be honoured for insufficient fund, legal notice was issued demanding its repayment, but it was not served and returned back with a postal endorsement of refusal. Under the above circumstances, when the complaint was filed, the learned J.M.F.C, found the petitioner guilty of the alleged offence and convicted him thereunder with a sentence of SI for one year and to pay compensation of Rs.7 lac to opposite party with a default sentence of SI for a period of three months. The aforesaid decision was challenged and according to the petitioner, the appeal preferred by him was dismissed by the learned court below thereby confirming the order of conviction and sentence. It is contended by the petitioner that the notice was not proved to have been refused with the examination of the postal staff and that apart, it was not correctly addressed to him and therefore, not right and justified on the part of the learned courts below to hold that an offence under of NI Act is proved and therefore, the order of conviction and sentence is bad in law and thus, liable to be interfered with in the interest of justice.

3. Heard Mr. Pattanaik, learned counsel for the petitioner and Mr. Harichandan, learned counsel for the opposite party.

4. According to Mr. Pattanaik, learned counsel for the petitioner, the impugned judgment confirming the order of conviction by the learned court below suffers from serious infirmity on the ground that such demand notice was not and never sent in the correct address of the petitioner and therefore, cannot be treated as a valid service in the eye of law and as such, no presumption would be attached vis-a-vis service and furthermore, there has been an endorsement as refusal, but then, the postal staff was not examined from the side of the opposite party and therefore, the initial burden of proof has not been discharged and hence, the order of conviction cannot be sustained in law. The further contention of Mr. Pattanaik, learned counsel is that a blank cheque was handed over to the opposite party as a means of security and not in respect of any legally enforceable debt or liability under Section 138 of the NI Act, the fact which was completely lost sight of by the learned courts below. It is alleged that the opposite party misused the blank cheque issued by the petitioner. The further contention is that the cheque was issued by and in the name of M/s Laxmi Traders, which has not been made