In the case of a proprietorship concern, only the proprietor can be held liable under Section 138 NI Act as the proprietorship concern and the proprietor are one and the same.

AMAN CHAUDHARY, J.

1. The present petition has been filed under Section 482 Cr.PC for setting aside the order dated 17.01.2018, Annexure P-4, passed by learned Judicial Magistrate, 1st Class, Kaithal, vide which the amendment application filed by the complainant-respondent was allowed.

2. Briefly put, the facts as per emerge from the complaint, Annexure P-1 are that on 15.06.2015, the petitioner had borrowed an amount of Rs.20 lakh for one month from the respondent for purchasing petrol and diesel, as she was running a petrol pump. To discharge the liability, she had issued a cheque dated 07.08.2015 of the aforesaid amount, which on presentation by the respondent with the bank, got dishonoured vide memo dated 08.08.2015 with remarks “funds insufficient”. Thereafter, the complainant-respondent served a legal demand notice dated 17.08.2015, at the complete and correct address of the petitioner which was refused to be accepted by the petitioner. Hence, the present complaint was filed. During the pendency of the present complaint, the respondent filed an application for impleading the Proprietorship Aum Oil Kissan Sevak Kende Habri through its Proprietor Suman Devi by way of amendment of the complaint, which has been allowed vide impugned order dated 17.1.2018.

3. Learned counsel for the petitioner had submitted that the learned trial Court has committed a grave error in allowing the application, as there is no provision for amendment of the complaint under the Negotiable Instruments Act. The cheque in question was of the proprietorship firm, though signed by the petitioner but the complaint was filed against the petitioner in her personal capacity and not as a sole proprietor, as such the complaint is liable to be dismissed. Furthermore. He placed reliance of the judgments in the cases of Himanshu vs. B. Shivamurthy and another, Criminal Appeal No.1465-2009 decided on 17.01.2019, by Hon’ble The Supreme Court of India and Ramesh Nagarkoti vs. Kedar Datt Purohit, Criminal Appeal No. 426 of 2018, decided on 03.03.20221 by High Court of Uttrakhand, to contend that as per Section 141 of the Act, in the absence of the company being arraigned as an accused, it cannot be held to maintainable against the appellant, who had signed the cheque as a Director, for and on behalf of the company.

4. Conversely, learned Counsel for the respondent had submitted that the complaint was filed on 19.09.2015, wherein the summoning order was passed but the petitioner had not challenged the same on the ground as is now sought to be projected inasmuch as that the complaint was filed against the petitioner in her individual capacity, for which reason it would be not maintainable. Submission raised was that this amounts to acquiescence by the petitioner, estopping the petitioner, in law to take such a plea at this stage when challenge is being made to the order of the trial court allowing the amendment and there being no challenge to the complaint and the summoning order, even in the present petition, this ground has not been taken specifically. Still further by the impugned order, no prejudice will be caused to the petitioner, as all pleas that she proposes to raise are still available to her during trial. He refers to the judgments passed by the Madhya Pradesh High Court in the case of Bhupendra Singh Thakur vs. Umesh Sahu Misc. Criminal case No.35101 -2022, decided on 26.7.2022, to contend that the complaint filed under Section 138 of the NI Act can be amended at any stage to cure infirmity.

5. Heard.

6. The admitted facts as emanate from perusal of the file as also the submissions of the learned counsel are that Suman Devi-petitioner is the sole proprietor of M/s Aum Oil Kisan Sewa Kendra, Habri and cheque had admittedly been signed by her for the aforesaid firm, as is also discernible from Annexure R-1.

7. Pertinently, in the case of Raghu Lakshminarayanan vs. M/s. Fine Tubes (2007) 5 SCC 103, Hon’ble The Supreme Court of India elucidatedly held that in case o