ORAL ORDER

R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 19500 of 2023

1.

Learned advocate Mr.Prerak Bhatt submits that the judgment and order of acquittal was passed by the learned trial Court by holding that the complainant fails to prove the case that he is holder in due course as he did not place on record any evidence to show that he is the proprietor of M/s.Moon Light. Learned advocate Mr.Bhatt has drawn the attention of this Court with regard to the certificate issued by the Bank of Baroda dated 04.10.2017 produced below Exhibit 6 and submitted that though this document was placed on record to show that the complainant is proprietor of M/s.Moon Light, learned trial Court without assigning the reasons for discarding the evidence has acquitted the respondent-accused from the charges.

2.

Learned advocate Mr.Bhatt has relied upon the decision rendered by the Apex Court in the case of Milind Shripad Chandurkar vs. Kalim M.Khan and Another, reported in 2011 (4)SC 275 wherein the Apex Court has held as under:

“17. It may also be pertinent to mention here that appellant did not make any attempt to adduce additional evidence at the appellate stage also. No document has ever been filed to substantiate his averment in this regard.

18. Section 7 of the Act 1881 defines "Payee" as the person named in the instrument, to whom or to whose order the money is by the instrument directed to be paid. Section 8 defines "the holder of the cheque" as any person entitled in his own name to the possession thereof and to receive or recover the amount due thereon from the parties thereto. Section 9 defines "holder in due course" as any person who for consideration became the possessor of a cheque if payable to a bearer or the payee or endorsee thereof.

19. Section 138 provides for penalties in case of dishonour of certain cheques for insufficiency of funds in the accounts. However, exception contained in clause (c) thereof reads as under:

"The drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice." (Emphasis added)

20. Section 142 provides for taking cognizance of the offence notwithstanding anything contained in Cr.P.C.

which reads as under:

"(a) no court shall take cognizance of any offence punishable under Section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque." (Emphasis added)

21. This Court in Shankar Finance and Investments v. State of Andhra Pradesh & Ors., (2008) 8 SCC 536, dealt with the issue involved herein elaborately and held that where the "payee" is a proprietary concern the complaint can be filed:

“(i) by the proprietor of the proprietary concern describing himself as the sole proprietor of the "payee"; (ii) the proprietary concern describing itself as the sole proprietary concern represented by its proprietor; and (iii) the proprietor or the proprietary concern represented by the Attorney Holder under the power of attorney executed by the sole proprietor.”

However, it shall not be permissible for an Attorney Holder to file the complaint in his own name as if he was the complainant. He can initiate criminal proceedings on behalf of the principal.

22.In a case of this nature, where the "payee" is a company or a sole proprietary concern, such issue cannot be adjudicated upon taking any guidance from Section 142 of the Act 1881 but the case shall be governed by the general law i.e. the Companies Act 1956 or by civil law where an individual carries on business in the name or style other than his own name. In such a situation, he can sue in his own name and not in trading name, though others can sue him in the trading name. So far as Section 142 is concerned, a complaint shall be maintainable in the name of the "payee", proprietary concern itself or in the name of the proprietor of the said concern.”

3.

Considering the