EITA INDIA LIMITED Vs. NCT OF DELHI

JUDGEMENT

(1.) This Petition under Section 482 of the Code of Criminal Procedure, 1973 (for short "Code of Criminal Procedure") is directed against the order dated 12/09/2000 passed by the court of Shri R.S.Verma, Addl. Sessions Judge, dismissing revision petition of the petitioner, up-holding the order of the Metropolitan Magistrate, dismissing the complaint instituted by the petitioner, under Section 138 of Negotiable Instruments Act. at the pre-sommoning stage on the ground that the same was not maintainable. Facts in brief are that M/s. Eita India Ltd. (hereinafter referred as 'the company') as the sole proprietor of M/s. East India Transport, Agency,(for short "EITA") filed a complaint under Section 138 of Negotiable Instuments Act. (for short "NI Act" ). against accused No . 1 and the directors, accused Nos. 2 to 9, persons in-charge and responsible for its day-to-day business. It was alleged that the accused persons booked consignment through its sole proprietorship concern EITA and paid Rs.14,000/-, leaving a balance of Rs.5,93,860.00. The accused persons acknowledged and confirmed their liability and issued two cheques of Rs.25,000.00 each in favour of the sole proprietorship concern EITA. On presentation the said cheques were received back dishonoured with the remark "Not arranged for/Exceeds arrangement"; payment was not made despite demand through legal notice dated 3.10.97; and ultimately the said complaint was filed on 21.11.97. The complainant in support of the case examined J.K.Nahata, regional manager and duly authorised representative of the company as CW-1, who stated on oath the above facts and proved certificate of incorporation, Ex.CW-1/A; power of attorney on behalf of company Ex.CW-1/C; resolution by the Board of Directors of the company Ex.CW-1/D; letter of confirmation Ex.CW-1/E; two dishonoured cheques Ex.CW-1/F and G; the covering memos of the dishonoured cheques Ex. CW-1/H and I; notice dated 3.10.97 Ex.CW-1/J; postal receipts Ex.CW-1/K and L; certificate of service of notice Ex.CW-1/M and the complaint Ex.CW-1/N.

(2.) By orders dated 25.11.99 after noticing the facts, learned trial court found that the complaint filed by the company was not maintainable. Reliance was placed upon the observations made by the learned Judge of the Gujarat High Court in Satish Jayanthilal Shah Vs. Pankaj Mashruwala 1997, CCR, 603, wherein it was held that the sole proprietorship concern is not an independent legal juristic entity in the eyes of law, therefore, it can neither initiate any proceedings nor any proceedings can be initiated against it. In that case the cheque was in the name of the sole proprietorship concern and the complaint instituted under Section 138 of the NI Act by its proprietor was, held to be valid. It was further held that since the cheques were not in favour of the company, therefore, the complaint by the company was not maintainable. Against the order dismissing the complaint, petitioner filed a revision petition which was dismissed by the learned Addl. Sessions Judge by a bald and unreasoned order dated 12.9.2000, holding that there was no illegality or impropriety in the impugned order. The order disposing of the revision petition should indicate application of mind on the facts or the pleas raised before the court, las has been held by the Supreme Court in the recent decision in Paul George Vs. State, 2002 AIR SCW 266. This order is under challenge.

(3.) The complaint was dismissed at the pro-summoning stage. It is not case of discharge or acquittal. The accused does not have any right to take part in the proceedings, at this stage. Reference in this regard can be made to the decision of Supreme Court in Chandar Deo Singh Vs_. Prakash Chandar Bose, AIR 1963 SC 397 and Dr.S.S.Khanna Vs. Chief Secretary. Patna AIR 1983 SC 595. Therefore, notice to the accused persons/respondents in the complaint, at this state, was not deemed essential; as held by this Court in J.K. International Vs. State. Crl.M.(M)No.4729/2000 decided on 25.5.2001.