TaxTMI 
TaxTMI 
2021 (1) TMI 65
X X X X Extracts X X X X
X X X X Extracts X X X X
..... 3 lac from the appellant on the pretext of meeting out his domestic expenses and accordingly, an amount of Rs. 3 lac was paid by way of loan and it was assured by the respondent that he would repay the same within a period of one month. When the appellant demanded his money back, then the respondent gave a cheque no.297843, dated 10th March, 2010 of Rs. 3 lac of ICICI Bank, Gwalior after signing the same and assured that the cheque would get encashed. When the complainant deposited the cheque in Madhya Pradesh Rajya Sahakari Bank Maryadit, Branch Gwalior, then it was returned back on 29/06/2010 with an endorsement that 'Funds are insufficient''. Thereafter, the appellant informed the respondent, however, he did not give any satisfactory reply. Accordingly, the complainant sent a statutory notice dated 05/07/2010 by registered post with acknowledgment due as well as by UPC. The registered notice was received by the respondent on 07/07/2010. When the respondent did not repay the amount, then the complaint was filed. It appears that before the evidence could be recorded, the appellant filed an application for amendment of complaint on the ground that by mistake, it ha....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... further submitted that it is incorrect to say that the cheque was issued by Prapti Collection. It is submitted that Prapti Collection was not the primary accused and since the cheque was issued by the respondent, therefore, not only the notice was issued to the respondent but the complaint was also filed against the respondent. Further, it is submitted that the Court below has wrongly disbelieved the version of the appellant by saying that the appellant has failed to produce any agreement executed between him and the respondent. It is further submitted that merely because the return memo Ex.P2 does not contain seal of the Bank would not make it doubtful because the respondent himself had examined one Ajay Jadon (DW2), an employee of ICICI Bank and even that witness has not stated that the return memo Ex.P2 was not issued by his Bank. The genuineness of return memo Ex.P2 has not been denied by Ajay Jadon (DW2), then it is incorrect to say that the return memo was not issued by ICICI Bank. Even otherwise, Section 146 of Negotiable Instruments Act, merely provides, that if the bank's slip contains official mark, then a presumption can be drawn, but that does not mean, that ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y the application has been filed belatedly, but it would also change the nature of the complaint. From the order sheets of the Trial Court, it is clear that the application for amendment was filed prior to cross-examination of complainant, although charge was already framed. Further, in the statutory notice Ex. P3, it was the stand of the appellant, that an amount of Rs. 3 lac was due as the respondent had got the advertisement of his shop. Thus, this Court is of the considered opinion, that the Trial Court, committed material illegality by rejecting the application filed by the appellant for amendment of the complaint and accordingly, the order dated 8-10-2012 passed by the Trial Court is hereby set aside, and the amendment in the complaint is allowed. Now, the next question for consideration is that whether the cheque was issued by a proprietorship firm or by respondent, and whether the complaint filed against the respondent is maintainable or not? It is the case of the appellant, that the advertisement of the shop was got done through the appellant, therefore, a cheque of Rs. 3 lac was given. It is clear from disputed cheque Ex. P.1, that the cheque was issued by the re....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rtnership Act, 1932. Though a partnership is not a juristic person but Order 30 Rule 1 CPC enables the partners of a partnership firm to sue or to be sued in the name of the firm. A proprietary concern is only the business name in which the proprietor of the business carries on the business. A suit by or against a proprietary concern is by or against the proprietor of the business. In the event of the death of the proprietor of a proprietary concern, it is the legal representatives of the proprietor who alone can sue or be sued in respect of the dealings of the proprietary business. The provisions of Rule 10 of Order 30 which make applicable the provisions of Order 30 to a proprietary concern, enable the proprietor of a proprietary business to be sued in the business names of his proprietary concern. The real party who is being sued is the proprietor of the said business. The said provision does not have the effect of converting the proprietary business into a partnership firm. The provisions of Rule 4 of Order 30 have no application to such a suit as by virtue of Order 30 Rule 10 the other provisions of Order 30 are applicable to a suit against the proprietor of proprietary busine....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e is presented for payment by the payee or holder in due course, otherwise through an account, the branch of the drawee bank where the drawer maintains the account, is situated. Explanation.-For the purposes of clause (a), where a cheque is delivered for collection at any branch of the bank of the payee or holder in due course, then, the cheque shall be deemed to have been delivered to the branch of the bank in which the payee or holder in due course, as the case may be, maintains the account. From the plain reading of the above Section, it is clear that the complaint has to be filed by the payee and in the present case, the payee is the Deepak Advertisers and accordingly, the complaint should have been filed by the proprietorship firm only through its proprietor. The Supreme Court in the case of Shankar Finance & Investments v. State of A.P. reported in (2008) 8 SCC 536 has held as under : 9. Section 142(a) of the Act requires that no court shall take cognizance of any offence punishable under Section 138 except upon a complaint made in writing by the payee. Thus the two requirements are that (a) the complaint should be made in writing (in contr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....DW1/respondent) had entered in the witness box but he also did not dispute his signature on the disputed cheque Ex.P.1. Even in his statement under Section 313 of CrPC the respondent had taken the following defence:- It is not out of place to mention here that once the accused enters into a witness box, then his status becomes that of like any other witness and accordingly, the respondent was under obligation to explain each and every circumstance which was against him. Further, in view of the presumption as provided under Section 139 of Negotiable Instruments Act, the burden was on the respondent to prove that the cheque was not issued in discharge of legally enforceable debt. The respondent in his evidence has stated that Deepak Jethwani (PW1) is his friend and he used to come to his shop very frequently. All papers including the cheques were kept by the respondent in his drawer. When he was in need of cheques, then he checked his drawer and found that three cheques bearing Serial Nos.297841, 297842 & 297843 of ICICI Bank were missing. Therefore, he went to Kotwali Police Station for lodging the FIR but the FIR was not lodged and he was suggested that the respondent may search....
X X X X Extracts X X X X
X X X X Extracts X X X X
....had kept cheques in the drawer from where they were stolen is concerned, the same cannot be accepted. Why a person would keep blank signed cheques in his drawer, specifically when he is the sole proprietor of a proprietorship firm? Further, no FIR or police report was ever lodged by the respondent regarding theft of his cheques. Further, the respondent could not disclose the date on which he came to know that his three cheques are missing and also could not disclose the date on which, he had gone to the police station for the first time, to lodge the report regarding missing cheques. The respondent has tried to project that the ink of other entries on the disputed cheque is different from the ink of the signatures. The respondent has also tried to establish that other entries are not in his handwriting. The question for consideration is that where the signatures of the drawer of the cheque, are admitted or are proved, then whether the drawer of the cheque would be absolved from his liability only on the ground that the other entries are not in his handwriting? The question is no more res integra. The Supreme Court in the case of Bir Singh Vs. Mukesh Kumar reported in (2019) 4 SC....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sumption that the disputed instrument was issued in discharge of legally enforceable debt. The Supreme Court in the case of Shree Daneshwari Traders Vs. Sanjay Jain reported in (2019) 16 SCC 83 has held as under : 17. Under Section 138 of the Negotiable Instruments Act, once the cheque is issued by the drawer, a presumption under Section 139 of the Negotiable Instruments Act in favour of the holder would be attracted. Section 139 creates a statutory presumption that a cheque received in the nature referred to under Section 138 of the Negotiable Instruments Act is for the discharge in whole or in part of any debt or other liability. The initial burden lies upon the complainant to prove the circumstances under which the cheque was issued in his favour and that the same was issued in discharge of a legally enforceable debt. 18. It is for the accused to adduce evidence of such facts and circumstances to rebut the presumption that such debt does not exist or that the cheques are not supported by consideration. 19. Considering the scope of the presumption to be raised under Section 139 of the Act and the nature of evidence to be adduced by the accused to rebut ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ntrary is proved" in Section 139 of the Act read with definitions of "may presume" and "shall presume" as given in Section 4 of the Evidence Act, makes it at once clear that presumptions to be raised under both the provisions are rebuttable. When a presumption is rebuttable, it only points out that the party on whom lies the duty of going forward with evidence, on the fact presumed and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed, the purpose of the presumption is over. 20. The accused in a trial under Section 138 of the Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the nonexistence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discha....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ounsel for the respondent that the return memo Ex. P2 is not proved. Considered the submissions made by the Counsel for the parties. As per the return memo Ex.P2, issued by ICICI Bank, the cheque was returned on two counts; (i) Funds Insufficient (ii) Drawer's signatures incomplete/Differs/ Required. So far as insufficiency of funds is concerned, it is not the case of the respondent that he had sufficient funds in his account. So far as the drawer's signature incomplete is concerned, it is not the case of the respondent that the disputed cheque Ex.P1 does not bear his signature. So far as the stand of the respondent that since the return memo Ex.P2 issued by ICICI Bank does not bear the seal of the Bank and, therefore, the same cannot be relied upon is concerned, the said submission of the counsel for the respondent cannot be accepted. The return memo Ex. P2 bears signature of an officer of ICICI Bank. The respondent has examined Ajay Jadaon (DW2), an employee of ICICI Bank, who did not try to prove that the return memo Ex.P2 was never issued by the Bank. On the contrary, it appears that when the counsel for the appellant tried to put a question to Ajay Jadon (DW2)....