ORDER

1. This petition has been filed by the applicant invoking the extraordinary jurisdiction of this Court under section 482 of Cr.P.C. challengin the order dated 13.12.2022 passed by Seventeenth Additional Sessions Judge, Bhopal in Criminal Revision No. 472 of 2022.

2. Briefly stated facts of the case are that the respondent had filed a complaint case under section 142 of the Negotiable Instruments Act, 19\881 against the applicant alleging an offence under section 138 of the Negotiable Instruments Act. It was stated in the complaint by the respondent that she is the proprietor of M/s Fluid Tech and and applicant is the proprietor of Jayshree Rail Construction. An agreement for sale dated 9.7.2018 was entered into between them to the effect that the respondent shall purchase the property of the applicant for a consideration of Rs.65,00,000/-. It was further stated by the respondent that in lieu of the agreement for sale, the respondent had transferred an amount of Rs.46,00,000/- between 18.7.2018 to 31.10.2018. Subsequently, agreement for sale dated 9.7.2018 was cancelled by the parties by mutual agreement and the applicant had issued a cheque of Rs.45,00,000/- bearing No. 130511 dated 20.4.2019 drawn on Union Bank of India, Arera Colony, Bhopal in favour of the respondent. When the respondent present the aforesaid cheque in the Bank, the same got dishonoured by the Bank stating that the instrument "exceeds arrangement" hence the applicant sent a legal notice to the applicant. Despite that, the applicant did not pay the aforesaid amount to the respondent, therefore, respondent filed a complaint case. In the said complaint case, learned JMFC vide order dated 5.9.2022 had taken cognizance and framed charge against the applicant under section 138 of the Negotiable Instruments Act. Being aggrieved thereby the applicant filed a criminal revision before Seventeenth Additional Sessions Judge, which has been dismissed vide order dated 13.12.2022, hence this petition has been filed by the applicant for quashing of aforesaid charge.

3. Learned counsel for the applicant submits that learned Judicial Magistrate First Class erred in law while taking cognizance vide its order dated 5.9.2022. Learned JMFC has failed to consider the fact that the proprietorship firm, which had issued the cheque in question, has not been impleaded as the respondent/accused. It is further submitted that Jay Shree Rail Constructions which had issued the cheque, is a proprietorship concern and has an independent existence and therefore, in absence of impleadment of the firm, the cognizance taken by learned JMFC is contrary to law, therefore, the impugned orders may be set aside and the applicant may be discharged from the aforesaid charge.

4. I have heard learned counsel for the applicant and gone through the impugned order. The impugned orders have been challenged by the applicant mainly on the ground that Jay Shree Rail Constructions, which had issued the cheque, is a proprietorship concern and has an independent existence and therefore, in absence of impleadment of the firm, the cognizance taken by learned JMFC is contrary to law.

5. In M.M. Lal v. State of NCT of Delhi reported in 2012 SCC OnLine Del 4851, it has been observed by the Delhi High Court that "it is well settled that a sole proprietorship firm has no separate legal identity and in fact is a business name of the sole proprietor. Thus any reference to sole proprietorship firm means and includes sole proprietor thereof and vice versa. Sole proprietorship firm would not fall within the ambit and scope of section 141 of the Act, which envisages that if the person committing an of ence under section 138 is a company, every person who, at the time of of ence 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 of ence and shall be liable to be proceeded against and punished according