LAWN HOSIERY MILLS Vs. DURGA FASHIONS

JUDGEMENT

(1.) BOTH these revisions are being disposed of through this common order, as they would involve the same issue between the same parties. The respondent-complainant filed complaints against the petitioners for the offence under section 138 of the Negotiable Instruments Act, 1881. During the course of trial, on noticing the misdescription of the cause title in relation to the particulars of the complainant, the respondent-complainant filed petitions for amendment to rectify the error. The same were allowed by the trial court. Aggrieved by that, the petitioners-accused have come before this court through these revisions. I have heard learned counsel for the petitioners and also gone through the records. When the complaints were filed, in the cause title, the complainant was shown as M/s. Sri Durga Fashions, a proprietary concern, represented by its proprietor P. Subramaniam. On noticing that the proprietary concern is not a juridical entity, the complainant filed applications requesting for permission to amend the cause title suitably by substituting the name of the proprietor in the place of the proprietary concern. The said applications were opposed by the accused on the ground that when the complaints were filed by the proprietary concern, which is not a juridical person in the eye of law, the applications for amendment cannot be allowed to make the invalid complaints as valid complaints and further the said applications have been filed belatedly. The trial court, after considering the submissions made by counsel for the parties and on the strength of the decisions rendered in (1) U.P. Pollution Control Board v. Modi Distillery (2) Egmore Benefit Society Ltd. v. K. Balasigamani, (3) Manian S. v. P. M. Nachimuthu 2000 (3) CTC 680, allowed the applications filed by the complainant for amendment.Assailing the said order, learned counsel for the petitioners, on the strength of decision of this court in Anas Industries v. Suresh Bafna 1999 1 MWN (Crl.) 296, would contend that showing the proprietorship concern as a party would suffer inherent defect and, therefore, both the complaints must be treated as not maintainable and consequently, the impugned order has to be set aside. On going through the records and on considering the arguments advanced by learned counsel for the petitioners, I am of the view that the trial court has correctly decided the point in issue in favour of the respondent-complainant. There is no dispute in the provisions of law that the proprietary concern is a non-entity. In the cause title in the complaints filed by the complainant, it is mentioned as M/s. Sri Durga Fashions, Tiruppur, represented by its proprietor P. Subramaniam. But, this would not mean that the complaints have been filed by a person, who has no juridical entity. As admitted by learned counsel for the petitioners, the proprietary concern, as such, is not an independent juridical entity, apart from its proprietor. In this case, the complaints have been filed by the proprietor as the proprietor of the proprietorship concern. Learned counsel for the petitioners would cite the decision reported in Anas Industries v. Suresh Bafna 1999 1 MWN (Crl.) 296 where it is held that the complaint cannot be filed against the proprietorship concern, as the same would suffer inherent defect. But, here, the complaints have been filed by the proprietor Subramaniam, who has signed as complainant in both these complaints. Furthermore, it is seen that the said complainant has been examined as P.W.-1 and he has stated that he is the complainant. Therefore, it cannot be taken to mean that a person of non-entity filed the complaints.Moreover, in the decision of this court in N. Vaidyanathan/Deepika Milk Marketing v. Dodla Dairy Ltd. 2000 1 MWN (Crl.) (Mad) (DCC) 33, it is held that it is a settled position of law that the proprietorship concern by itself is not a legal entity, apart from its proprietor, the proprietary concern and the proprietor are one and the same person. It is further held in the said decision that the prosecution against the proprietor representing the proprietorship concern or proprietorship concern represented by its proprietor are one and the same, as both these things sink, sail and merge with only one entity. So, the above proposition of law laid down by this court in regard to cause title relating to the accused would apply equally to the cause title of the complainant also. Therefore, by following the above proposition, it can be safely held that the prosecution by the proprietor representing the proprietorship concern or the proprietorship concern represented by its proprietor are one and the same, as both things convey the same meaning. Therefore, even without amendment, the complaints are maintainable, because the complainant in these cases is only the proprietor Subramaniam representing the proprietorship concern. Under those circumstances, it can be safely held that the amendment, which has been permitted by the trial court, would not change the character and basic structure of the complaints. Therefore, both these revisions are liable to be dismissed as devoid of merit. The trial court is directed to continue the trial and dispose of the same in accordance with law as expeditiously as possible. In the result, these criminal revision cases are dismissed. Consequently, the connected Crl. M.Ps. stand dismissed.