A proprietorship firm can be proceeded against under Section 138 of the Negotiable Instruments Act, and the Trial Court has jurisdiction to summon the accused without recording the statement of the complainant under Section 202 Cr.P.C.

JUDGMENT :

1. Heard Mr. Baljeet Singh Advocate, learned counsel for the revisionists as well as learned AGA for the State and perused the record.

2. By means of the instant Criminal Revision under Section 397/401 of the Code of Criminal Procedure, 1973, the revisionists have challenged the validity of the order dated 18.10.2021 passed by the Presiding Officer, Additional Court No.2, Lucknow in Complaint Case No. 6823 of 2019 (M/s Seven Seas Net Mart Sales Pvt. Ltd. vs. M/s Neel Jewellers and another) under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘the Act’) rejecting the application filed by the revisionists for being exonerated of the liabilities/obligations mentioned in the complaint.

3. The facts of the case, briefly stated, are that on 19.08.2019 the opposite party no. 2–complainant filed a complaint under Section 138 of the Act inter alia stating that the revisionist no. 1 is a proprietorship firm in the proprietorship of the revisionist no. 2, who is a regular customer of the complainant company. During the course of business, the revisionist no. 1 took supply of some items from the complainant and to pay the price of the goods it issued some cheques. A cheque bearing no. 044778 dated 06.06.2019 drawn on Allahabad Bank, City Office Branch, Gorakhpur for Rs.3,00,000/- only, which was signed by the revisionist no. 2 was dishonored with the endorsement “payment stopped by the drawer”. It is stated in the complaint that the action of the revisionists is punishable under Section 138 read with Section 141 of the Act and the revisionist no. 2, the proprietor of the revisionist no. 1 was responsible for conducting the business of the proprietorship firm at the relevant time when the aforesaid offence was committed.

4. The learned Additional Chief Judicial Magistrate, VIIIth, Lucknow recorded the statement of the complainant under Section 200 Cr.P.C. in the form of an affidavit dated 19.08.2019. The complainant gave his statement under Section 200 Cr.P.C. through his affidavit dated 19.08.2019 and he adduced the original cheque in question, the memo issued by the Bank, a copy of the registered notice and the postal receipt as evidence under Section 202 Cr.P.C.. After taking into consideration the aforesaid material, the learned Court below has come to the conclusion that from the material/evidence available on the record, an offence under Section 138 of the Act is made out against the accused persons/revisionists and has passed an order summoning the revisionists for being tried for the aforesaid offence.

5. After passing of the aforesaid order, the revisionist approached this Court by filing an Application under Section 482 Cr.P.C. No. 1901 of 2021 and after arguing the matter at some length, the learned counsel for the applicants (revisionists) submitted that he did not want to press the aforesaid application under Section 482 Cr.P.C. on merits and he confined his prayer only to the extent that the applicants be permitted to move a discharge application through counsel and suitable directions may be issued for expeditious disposal of the same.

6. The aforesaid application No. 1901 of 2021 was accordingly disposed of vide order dated 22.06.2021 providing that the applicants may move their discharge application through counsel and the same shall be heard and decided, expeditiously, after hearing the parties, in accordance with law, by means of a reasoned and speaking order.

7. Thereafter, the revisionists filed an application before the learned Court below for being exonerated of the liabilities under the complaint, without mentioning the provision of law under which the application was filed.

8. The learned counsel for the revisionists has submitted that in the aforesaid application it was mentioned that ‘in para 11 of the complaint a prayer has been made to punish the revisionists under Section 141 of the Negotiable Instruments Act, 1881’ and that the revisionist no. 1 is neither a company registe