SWATHI CREATIONS Vs. SIVANANDHAM AGENCIES

JUDGEMENT

(1.) The above criminal original petition has been filed under Section 482 of the Code of Criminal Procedure praying to call for the records in C.C. No. 624 of 2004 pending on the file of the Learned Judicial Magistrate No.II, Tiruvallur, and quash the same as against the petitioner.

(2.) The petitioner's case is that he had purchased petrol from the respondent petrol bunk for a total value of Rs.12,77,073.67; that out of the said sum, he has paid a sum of Rs.8,09,035/- and also issued a cheque for a sum of Rs.4,68,825/- and when the same was presented for collection, it was returned with an endorsement "stop payment"; that a legal notice was issued demanding the same amount on 12.9.2004 and the same was acknowledged by the petitioner; that since he failed to comply with the demand, a case has been filed under Section 138 of the Negotiable Instruments Act in C.C. No. 624 of 2004 on the file of the Judicial Magistrate No.II, Tiruvallur; that since the 1st accused is the proprietary concern and the 2nd accused is the proprietor and both the accused are one and the same, A1 is not a legal entity or juristic person and therefore, the prosecution cannot be initiated against it and hence, he has come forward for the relief extracted Supra.

(3.) Learned counsel for the petitioner submits that a proprietary concern is neither a firm nor a company so as to come within the ambit of Section 141 of Negotiable Instruments Act. A proprietary concern does not have a separate legal entity apart from its proprietor since the proprietary concern and the proprietor are one and the same person. He also relied on the decision reported in S.K. REAL ESTATES REP. BY ITS PROPRIETOR S.K.KRISHNAMOORTHY AND ANOTHER Vs. - S. AHMED MEERAN (2002 (1) MWN (CRL) DCC (MAD.) 120) wherein it has been held that..