CRM No.M-32785 of 2010 v. M/s Instant Remedies Private Limited

the material on record, the trial Court summoned the petitioner-accused to face the trial in respect of the indicated offence.

2. Instead of submitting to the jurisdiction of the trial Court, the petitioner-accused-Viral Mardia(accused No.2) straightway filed the present petition for quashing the criminal complaint (even without annexing the summoning order), invoking the provisions of Section 482 Cr.P.C.

3. After hearing the learned counsel for the petitioner, after going through CRM No.M-32785 of 2010 2 the record with his valuable assistance and after considering the matter deeply, to my mind, there is no merit in the instant petition.

4. Ex facie, the arguments of the learned counsel that the petitioner has been falsely implicated, legal notice(Annexure P-3) was not a valid notice in the eyes of law and since the petitioner was not the proprietor of the accused- Company, so he is not liable for the commission of offence punishable under Section 138 of the Act, are neither tenable nor the observations of the Kerala High Court in case C.G.Dassan Vs. Ranimol S., 2002(4) RCR(Criminal) 21, of Madras High Court in cases Anas Industries Vs. Suresh Bafna, 1999(4) RCR (Criminal) 486 and S.K.Real Estates and another Vs. S.Ahmed Meeran, 2002 Cri.L.J. 1689, are at all applicable to the facts of the present case.

5. In C.G.Dassan's case(supra), it was observed (para nos.6 and 8) as under:- “On a perusal of the evidence, it is seen that absolutely no evidence has been adduced by the complainant to establish that he is the proprietor of the particular business concern. The complaint is filed by C.G.Dassan, 'Sindhu Coir Traders', Thumpoli, Alappuzha. The prefix M/s. used in Ext.P1 might lead to an indication that it is actually a partnership firm. If it is not actually a partnership, but an individual's proprietory concern, the burden to prove that lies on the complainant. Even before this court no evidence is adduced to show that the complainant has been carrying on a business under the particular name and style. In the circumstances, the complainant would not be entitled to get the relief prayed for unless it is established that the cheque was issued to him and that the particular business concern mentioned as payee of the cheque was owned by him. In the circumstances, the impugned judgment is set aside and the matter is remitted to the trial court with the following directions:- An opportunity will be given to the complainant to establish the fact that he is the proprietor of 'M/s Sindhu Coir Traders', which is shown as payee in Ext.P1 cheque. Needless to say that the accused would also be questioned under section 313 CRM No.M-32785 of 2010 3 of the Cr.P.C. in the light of the prospective evidence. If so desired, defence witnesses also should be allowed to be examined. After collection of such further evidence the case will be disposed of afresh and in accordance with law.”

6. Sequelly, in Anas Industries and S.K. Real Estates and another's cases(supra), it was held that sole proprietorship concern is not a judicial person to come under criminal prosecution and receipt of notice by any other person may not be acceptable and valid acknowledgement of notice. However, the prosecution against the proprietor is maintainable under the Negotiable Instruments Act. Possibly, no one can dispute with regard to the aforesaid observations, but the same would not come to the rescue of the petitioner at this premature and initial stage of the controversy.

7. As is evident from the record that there are specific allegations in the complaint that the accused have been purchasing different allopathic medicines from the complainant-Company, from time to time and making the payment towards the said medicines purchased by them. On 25.03.2010, a sum of Rs.1,72,000/- was outstanding against the accused. In order to discharge their legal liability, the accused issued and delivered a cheque bearing No.058679 dated

25.03.2010 for the outstanding payment for a sum of Rs.1,72,000/- in favour of the complainant-Company, towards full and final payment. The complainant- Company presented the said cheque with his banker Canara Bank, Sector 35, Chandigarh, for its collection from the account of the accused, but the same was dishonoured on 27.03.2010. The fact of dishonouring of the said cheque was brought to the knowledge of the accused. They felt regretted and requested the complainant-Company to present the said cheque again in the last week of April,

2010. Accordingly, the complainant-Company presented the said cheque with his banker Canara Bank, Sector 35, Chandigarh, for collection of cheque amount from the account of the accused, but the same was again dishonoured on

30.04.2010 with the remarks “ACCOUNT CLOSED”. As such the bounced cheque CRM No.M-32785 of 2010 4 was received back unpaid by the complainant-Company on 01.05.2010. Thereafter, the complainant-Company issued a legal notice dated 24.05.2010 under Regd.A.D. and UPC cover. The same was served upon the accused on 27.05.2010. All the transactions were stated to have taken place at Chandigarh. It has been specifically mentioned in the complaint that the accused has issued the said cheque with dishonest intention, knowing fully well that the same would be dishonoured on its presentation in the bank and as such the accused has committed the offence punishable under Section 138 read with Sections 141 and 142 of the Act.

8. The trial Magistrate, having completed all the codal formalities and on ultimate analysis of the evidence of record, rightly summoned the accused to face the trial.

9. All the celebrated contentions that (i) the petitioner has been falsely implicated, (ii) he has no concern with the alleged transaction, (iii) legal notice (Annexure P-3) was not a valid notice, (iv) that the accused-Company is a proprietorship concern or not and (v) the element of mens ria is missing, are not tenable at this stage in the absence of any cogent material on record in this context. The same can only be appreciated after the receipt of cogent evidence during the course of trial in the trial Court. Therefore, the contrary arguments of the learned counsel for the petitioner 'stricto sensu' deserve to be and are hereby repelled under the present set of circumstances.

10. No other point worth consideration has been urged or pressed by the learned counsel for the petitioner.

11. In the light of aforesaid reasons and without commenting further anything on merits, lest it may prejudice the case of either side during the course of trial, as there is no merit, therefore, the present petition is hereby dismissed in the obtaining circumstances of the case. November 09, 2010 (MEHINDER SINGH SULLAR) JUDGE