A cheque issued by a Firm does not implicate the proprietor unless the Firm is named as an accused; absence of sole proprietorship averment in the complaint is fatal.

ORDER :

This application under Section 378(4) of Code of Criminal Procedure has been filed by the applicant seeking leave to file an appeal against the judgment of acquittal dated 24.7.2019 passed by Judicial Magistrate First Class, Katni in Criminal Case No. 1848 of 2012 whereby the respondent has been acquitted of the offence under Section 138 of the Negotiable Instruments Act.

2. The facts of the case, in short, are that towards transaction pertaining to purchase of coal, a cheque of Rs.1,05,000/- bearing No. 2476055 was issued by the respondent to the present applicant. The said cheque was submitted by the applicant with the Bank for encashment and got dishonoured and therefore, after giving legal notice to the respondent, the applicant filed a complaint under Section 138 of the Negotiable Instruments Act before the trial Court. The trial Court vide impugned judgment dated 24.7.2019 has dismissed the complaint and acquitted the respondent. Being aggrieved thereby, this application seeking leave to appeal has been filed by the applicant.

3. The counsel for the applicant submits that the trial Court while dealing with the complaint framed as many as 6 issues, which are discussed by the trial Court in Paragraph 4 of the impugned judgment. It is submitted that the trial Court, though concluded that the cheque in question was given by the respondent to the applicant, yet has declined to entertain the complaint on the ground that the cheque in question was issued by a Firm, of which the respondent was the proprietor and as the said Firm was not arrayed as one of the accused in the complaint, hence the complaint was not maintainable in view of the law laid down by the Apex Court in Aneeta Hada v. Godfather Travels & Tours (P) Ltd., - (2012) 5 SCC 661. It is further contended that the trial Court was required to appreciate that the respondent was the sole Proprietor of the Firm and, therefore, impleadment of the Firm in the complaint was not imperative. In support of the aforesaid contention, the counsel for the applicant has placed reliance on the decisions in Raghu Lakshminarayanan Vs. Fine Tubes - (2007) 5 SCC 103; Dhirendra Singh Vs. State of U.P. and another - 2020 SCC OnLine All 1130 and judgment dated 2.5.2023 passed by High Court of Orissa in CRLMC No. 2215 of 201 (Uttam Kumar Ray Vs. M/s Knowledge Infrastructure System Pvt. Ltd.).

4. Heard the submission advanced on behalf of the applicant and perused the record.

5. On perusal of record, it reflects that a complaint was filed by the applicant under Section 138 of the Negotiable Instruments Act against the respondent upon dishonour of a cheque. On perusal of the complaint, which is available on record, it reflects that in Paragraph 1 of the same, the complainant averred that the respondent is the Proprietor of M/s Om Industries and purchases coal and other material from the applicant. In the entire complaint, there is no averment that the respondent was the sole Proprietor of the Firm i.e. M/s Om Industries. The statement of the applicant is also on record. Again in the statement, the same averment has been made by the applicant in Paragraph 1 but it is nowhere stated in the entire statement that M/s Om Industries was the sold Proprietorship Firm, of which the respondent was the sole Proprietor. The cheque in question is also available on record, a perusal of which reflects that the cheque was issued by M/s Om Industries in favour of M/s Minerals and Fuels. The cheque was signed by the respondent in the capacity of the Proprietor. It is also evident from the perusal of the bills, which were produced by the applicant before the trial Court that the coal was being supplied to M/s Om Industries only and bills were issued in the name of M/s Om Industries. Hence, if in the present case, had there been specific averment in the complaint that M/s Om Industries was the sole Proprietorship Firm and the respondent was its Proprietor, different consideration would have been there. But in