Arraigning of the sole proprietary concern is a condition precedent for a well-constituted complaint under Section 138. Prosecution under Section 141 requires arraigning of a company as an accused.

JUDGMENT

Sureshwar Thakur, J. - A cheque enclosing therein a sum of Rs. 5,50,000/-, and, as becomes embodied in Annexure P-5, became issued by the accused petitioner herein, to the respondent-complainant, towards purported discharge of a contractual, or, other legal liabilities, as entered into amongst the concerned.

2. Since upon presentation of Annexure P-5, it became declined to be honoured, as such, after the apposite statutory notice being served upon the petitioner, a complaint existing at Annexure P-1, of the instant petition became instituted by the aggrieved complainant before the learned Judicial Magistrate First Class, Karnal.

3. Subsequent to the learned Judicial Magistrate concerned, making application of mind to the complaint, and, to the documents/material appended therewith, besides upon his making an application of mind to the preliminary evidence, as became adduced by the complainant, rather proceeded to issue a summoning order upon the accused-petitioner herein. The summoning order is appended as Annexure P-2 to the instant petition.

4. The learned counsel appearing for the petitioner has prayed for the quashing of the complaint, and, has also asked for relief of annulment of the summoning order.

5. The memo of parties as displayed in the petition complaint is extracted hereinafter.

" M/s Green Feeds, Near Shamshan Ghat, VPO Bastara, District Karnal through its Partner Sh. Vipin Kumar .......Complainant Versus Sardar Bhupinder Singh, Proprietor, M/s Thind Traders, VPO Mohie, New Mullarpur, District Ludhiana, Punjab, PIN 141103 .....Accused"

6. The learned counsel appearing for the aggrieved accused petitioner herein, has argued that even though, the accused petitioner herein, is the sole proprietor of M/s Thind Traders, but yet, he argues that for the drawing of a valid inculpation, even against the sole proprietary entity, or a sole proprietary firm, it was but imperative, for the complainant, to sue the sole proprietary entity concerned, whereas, contrarily, the above extracted memo of parties, as carried in the petition complaint, rather revealing qua the complaint suing only the accused/petitioner herein. Therefore, he contends that for absence of suing of the sole proprietary concern, rather the complaint is defective, and, also argues that since the above suing of the sole proprietary entity, is a condition precedent, for making the complaint well constituted. Resultantlty he prays for the above reliefs being granted.

7. In making the above argument, he rests them upon the provisions of Section 141 of the Negotiable Instruments Act (for short call 'the Act'), provisions whereof became extracted hereinafter.

[ 141 Offences by companies. -

(1) If the person committing an offence under section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly.

Provided that nothing contained in this sub-section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence: [Provided further that where a person is nominated as a Director of a company by virtue of his holding any office or employment in the Central Government or State Government or a financial corporation owned or controlled by the Central Government or the State Government, as the case may be, he shall not be liable for prosecution under this Chapter.]

(2)Notwithstanding anything contained in sub-section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the compan