TaxTMI 
TaxTMI 
2025 (7) TMI 63
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....a Dhatu Pvt. Ltd., a company registered under the Companies Act, 1956, is engaged in the business of manufacturing of Acoustic Enclosures (Canopy) and Genset Control Panels. The Respondent No. 1, M/s Udai Continentals, a proprietorship concern, is engaged in the business of trading of Diesel Generating Sets, under the Proprietorship of Mr. D.P. Singh, who has been arrayed as Respondent No. 2. 4. It is the case of the Appellant that the Appellant and Respondent No. 2 had entered into business transaction wherein an order for supply of canopies was placed by Respondent No. 1 with the Appellant. Accordingly, the goods conforming to the agreed specifications were duly supplied by the Appellant to Respondent No. 1. The Respondent No. 2 issued an advance cheque bearing No. 040164, dated 12.11.2003 in the sum of Rs.1,10,000/-, drawn on ICICI Bank, Kanpur Branch to the Appellant. Consequent thereto, the Appellant presented the afore-noted cheque for encashment through its banker, however, the same was returned dishonored. 5. Upon being informed of the dishonor of the said cheque, the Appellant claims to have approached Respondent No. 2, who, while requesting that no legal proceedings....
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.... the Appellant also preferred an application under Section 340 of the Cr.P.C., seeking prosecution of Respondent No. 2 on the ground that he had misrepresented himself as the Proprietor of Respondent No. 1 and had thereby committed fraud upon the Court. The said application was dismissed vide a separate Order dated 24.09.2011. 13. Upon considering the evidence led, material on record and the submissions of the parties, the learned Trial Court vide the Impugned Order dated 24.09.2011, dismissed the complaint and acquitted Respondent No. 2. 14. Aggrieved thereof, the Appellant has approached this Court by way of the present appeal. Submissions on behalf of the Appellant 15. The learned counsel for the Appellant assailed the Impugned Order and submitted that the Respondents No. 1 & 2 were duly impleaded as the accused in Memo of Parties and their specific roles were clearly assigned in the Complaint. Furthermore, both the Respondents were summoned by the learned Trial Court and they entered appearance and participated in the proceedings. 16. He further submitted that Respondent No. 2 filed a Vakalatnama specifically in the capacity of Proprietor of Respondent No. 1, the....
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....e, the learned counsel submitted that even in the memo of parties of the present appeal, the Respondent No. 2 has represented himself to be the proprietor of Respondent No. 1. Submissions on behalf of the Respondents 23. Per contra, the learned counsel for Respondent No. 2 while supporting the Impugned Order, submitted that the Appellant had moved an application for summoning of Ms. Sarika Singh Kuchhawaha W/o Respondent No. 2, who is the actual proprietor of Respondent No. 1. He submitted that she, being the proprietor, is responsible for day-to-day affairs of Respondent No. 1. However, the learned Trial Court dismissed the application, which has attained finality as the order of dismissal was not assailed by the Appellant before the Appellate Court. 24. He submitted that in the statement recorded of Respondent No. 2 under Section 313 of the Cr.P.C., he has specifically denied to be the proprietor of Respondent No. 1. He further stated that he was not the signatory of the cheque in question and had no business relationship with the Complainant or with the transaction in question. 25. The learned counsel further submitted that the cheque in question was never issued by ....
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.... 138 of the NI Act manifests that it is the drawer of the cheque-in-question, which is liable for punishment as per the provisions of the Act, in case the cheque is dishonored on the grounds as provided under Section 138 of the NI Act. 32. At this stage, therefore, it is apposite to refer to the observations of the Supreme Court in case of Raghu Lakshminarayanan Vs. Fine Tubes, (2007) 5 SCC 103, wherein, it was held as under: "9. The description of the accused in the complaint petition is absolutely vague. A juristic person can be a company within the meaning of the provisions of the Companies Act, 1956 or a partnership within the meaning of the provisions of the Partnership Act, 1932 or an association of persons which ordinarily would mean a body of persons which is not incorporated under any statute. A proprietary concern, however, stands absolutely on a different footing. A person may carry on business in the name of a business concern, but he being proprietor thereof, would be solely responsible for conduct of its affairs. A proprietary concern is not a company. Company in terms of the Explanation appended to Section 141 of the Negotiable Instruments Act, means anyb....
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....nature of the case." 14. We, keeping in view the allegations made in the complaint petition, need not dilate in regard to the definition of a "company" or a "partnership firm" as envisaged under Section 34 of the Companies Act, 1956 and Section 4 of the Partnership Act, 1932 respectively, but, we may only note that it is trite that a proprietary concern would not answer the description of either a company incorporated under the Companies Act or a firm within the meaning of the provisions of Section 4 of the Partnership Act." 33. This Court, in the case of M.M. Lal v. State NCT of Delhi 2012 (4) JCC 284, held as under: "4. 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 offence under Section 138 is a company, every person who, at the time of offence was committed, was in-charge of, and was responsible to the company for the conduct of the ....