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ANDHRA PRADESH HIGH COURT
Samudrala Govindarajulu, J.
A. Brahmananda Reddy —Appellant
versus
State of A.P. and Anr. —Respondents
Criminal Appeal No. 2141 of 2004
Decided on 23.12.2011
Counsel for the Parties:
For the Appellant:Mr.Nimmagadda Satyanarayana, Advocate.
For the Respondents:Addl. Public Prosecutor, Advocate.
IMPORTANT POINT
Since the proprietary concern has no independent identity, law does not require a proprietary concern to be added as a party to any case in addition to the proprietor thereof.
Headnote:Negotiable Instruments Act, 1881—Section 138—Dishonour of cheque—Acquittal on ground that complaint was barred by limitation—Appeal—Complaint was to be filed by 25.8.1998 but it was filed on 26.8.1998 with a pea that 25.8.1998 was holiday—Court held that no evidence was produced that 25.8.1998 was holiday—Whether 25.8.1998 was holiday or not, no party was needed to produce evidence and court ought to have examined it itself—Court calendar showed that 25.8.1998 was holiday—Impugned order was liable to be set aside. (Para 2)
(ii) Negotiable Instruments Act, 1881—Section 138—Dishonour of cheque was drawn by accused as proprietor on account of said proprietary concern but proprietary concern was not impleaded—Proprietary concern had not independent entity and law did not require concern to be impleaded as party—Impugned order was unsustainable. (Para 3)
(iii) Negotiable Instruments Act, 1881—Section 139—Dishonour of cheque—Acquittal on findings that cheque was not drawn towards discharge of debt or liability—Appeal—Complainant evidence was that accused purchased casuarina wood from him and cheque was towards value thereof—Trial Court relied upon certificate produced by accused in his 313 CrPC examination, certificate issued by paper mill, that wood was supplied by complainant to mill—Certificate in absence of it being proved ought not to have been taken into consideration—Accused could not be said to have rebutted the presumption in favour of complainant—Accused was liable to be convicted—As against cheque for Rs. 1,30,000 sentence of six months imprisonment and fine of Rs.1,35,000 imposed and Rs.1,30,000 to be paid to complainant out of recovered fine amount. (Paras 5 and 6)
Samudrala Govindarajulu, J.—The complainant filed this appeal questioning order of acquittal of the accused recorded by the lower Court of the offence under Section 138 of the Negotiable Instruments Act (in short, the Act). The complainant PW1 filed the complaint in the lower Court on the ground that Ex. P1 cheque for Rs. 1,30,000 drawn by the accused in his favour was dishonoured as per Exs. P2 and P3 memos by the banker for want of ‘sufficient funds’ in the amount of the accused. After issuing requisite notice under Ex P4 by way of courier service, the complainant filed the complaint in the lower Court. The lower Court recorded acquittal on four grounds namely (1) that Ex P1 cheque was not drawn towards discharge of any debt or liability, (2) that Ex P1 cheque was drawn by the accused as proprietory of Srividya Suppliers and Contractors and on account of said proprietary concern and therefore the complaint should have been filed impleading the proprietary concern as one of the accused, (3) that there is no proof of service of notice on the accused prior to filing of the complaint, and (4) that the complaint is barred by limitation. It is contended by the appellant’s counsel that all the above four grounds on which the lower Court disallowed the complaint are untenable and highly unreasonable. Notice of this appeal was sent to the 2nd respondent accused and it was refused.
2. The lower Court came to the conclusion that even if the notice was served on the accused on 11.7.1998, the complaint should have been filed by 25.8.1998 (i.e.) within 45 days thereof and instead, the complaint was instituted on the lower Court on 26.8.1998 and is therefore barred by limitation. Even though it is contended before lower Court that 25.8.1998 was a public holiday, the lower Court observed that no evidence was produced to show that 25.8.1998 was holiday. For noticing whether 25.8.1998 is a holiday or not, no party need to produce any oral or documentary evidence. The lower Court should have noted whether it was a holiday or not by looking at Calendar of the year 1998 for Subordinate Courts. Calendar of the year 1998 for Subordinate Courts notified by this High Court shows that 25.8.1998 was declared as holiday as it was ‘Vinayaka Chaturdhi’ day. The lower Court should have taken judicial notice of the said fact. Therefore, in any event, the complaint is not barred by limitation.
3. A proprietary concern is no juristic person in the eye of law. It is only embodiment of the proprietor himself. In the case of a proprietary concern, Section 141 of the Act has no application, since it is no association of individuals in plurality. It is an individual concern by itself. It has no identity or entity in law apart from the proprietor himself. Therefore, comment of the lower Court that the complaint is bad for non-joinder of proprietary concern of the accused is unwarranted by law. Assuming for a moment for the sake of argument that Section 141 of the Act has any application to any proprietary concern, even then as per sub-section (1) thereof, not only the proprietary concern, but also the proprietor is individually and independently liable for the offence under Section 138 of the Act. The cheque Ex.P1 was no doubt drawn by the accused on account of his proprietary concern. Since the proprietary concern has no independent identity, law does not require a proprietary concern to be added as a party to any case in addition to the proprietor thereof.
4. To prove service of notice Ex.P4 courier service, the complainant apart from filing Ex.P5 courier receipt, examined PW4 who is running the said courier service. It is pointed out by the lower Court that PW4 in cross-examination deposed that he has no knowledge whether notice was received by the accused to whom it was addressed or whether it was returned unserved. It is pointed out by the appellant’s Counsel that when the complainant filed Crl. M.P. No. 1724 of 2004 in the lower Court, for permission to
