A proprietor of a proprietary concern cannot be prosecuted under Section 141 of the Negotiable Instruments Act if they are not the authorized signatory or proprietor of the firm.

JUDGMENT

Kuldeep Tiwari, J. (Oral)

Both these petitions are taken up together for disposal by a common order, as the law point(s) involved therein, is similar in nature. For brevity, the facts are being extracted from CRM-M-33437 of 2018.

2. The respondent-company, which is the owner of M/s The Wave (Westend) Malls, Ferozepur Road, Ludhiana, leases out space(s) in the said Mall for hoardings to different parties.

3. The respondent-company, provided some space in its Mall to one M/s Ultimate Signages for consideration on credit basis. To discharge its liability, M/s Ultimate Signages issued a cheque bearing No. 697305 dated 7.12.2016 amounting to Rs.2,50,000/-, drawn at erstwhile State Bank of Patiala (now State Bank of India), Model Town, Ludhiana, however, upon its being presented for encashment, it was dishonoured and returned with the remarks "Funds Insufficient" vide memo dated 9.12.2016. Hence, the present complaint (Annexure P-1) under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the NI Act') has been filed against the petitioner, being proprietor of M/s Ultimate Signages.

4. Consequent upon filing of the present complaint (Annexure P-1), the petitioner has been summoned by the learned Judicial Magistrate, 1st Class, Ludhiana vide order dated 21.03.2017 in a complaint bearing No.COMA- 3495/17.02.2017, titled as "A.B. Motions Pvt. Ltd. v. Ultimate Signages and another", to face the trial under section 138 of the NI Act.

5. Having been aggrieved by the summoning order (Annexure P-2) as well as the criminal complaint (Annexure P-1), the instant petition under Section 482 Cr.P.C. has been filed, on the ground that the criminal complaint is not maintainable against the present petitioner inasmuch as he has no concern, whatsoever, with the sole proprietorship firm M/s Ultimate Signages, which has been arrayed as accused No.1, in the criminal complaint (Annexure P-1).

6. Learned counsel for the petitioner submits that neither the petitioner is the authorized signatory, nor the proprietor of the accused firm, therefore, the impugned summoning order, vide which the petitioner has been summoned to face the trial in criminal complaint (Annexure P-1) is totally illegal.

7. In support of his arguments, he has placed reliance upon the judgment passed by the Hon'ble Apex Court in case titled as "Raghu Lakshminarayanan v. M/s Fine Tubes", 2007 (5) SCC 103, wherein the Hon'ble Supreme Court has held that the proprietary concern would not fall within the description of either a Company incorporated under the Indian Companies Act or a firm within the meaning of the provisions of section 4 of the Indian Partnership Act. Therefore, the petitioner having no concern with the proprietary firm cannot be prosecuted with the aid of section 141 of the NI Act. The relevant extract of the same reads as under:-

"13. The distinction between partnership firm and a proprietary concern is well known. It is evident from Order XXX Rule 1 and Order XXX Rule 10 of the Code of Civil Procedure. The question came up for consideration also before this Court in M/s. Ashok Transport Agency v. Awadhesh Kumar and another [(1998) 5 SCC 567] wherein this Court stated the law in the following terms:-

"6. A partnership firm differs from a proprietary concern owned by an individual. A partnership is governed by the provisions of the Indian Partnership Act, 1932. Though a partnership is not a juristic person but Order XXX, Rule 1, CPCenables the partners of a partnership firm to sue or to be sued in the name of the firm. A proprietary concern is only the business name in which the proprietor of the business carries on the business. A suit by or against a proprietary concern is by or against the proprietor of the business. In the event of the death of the proprietor of a proprietary concern, it is the legal representatives of the proprietor who alone can sue or be sued in respect of the dealings of the proprietary business. The provisions o