JIJAMATA SPINNING MILLS PVT LTD Vs. SANJAY

JUDGEMENT

(1.) THIS petition under Section 482 of the Code of Criminal Procedure [in brief "the Code"] has been filed against the order dated 19.12.2012 passed by JMFC, Indore in Criminal Case No.38493/2012, whereby took cognizance for the offence under Section 138 of the Negotiable Instruments Act.

(2.) Non-applicant ­ Sanjay Dhoot, who is a sole Proprietor of M/s Avantika Ginning Factory has filed a private complaint under Section 138 of the Negotiable Instruments Act [in brief "the Act"] on the ground that two cheques each of Rs.50.00 lacs given by the applicant No.4 has been dishonoured by the bank. After sending statutory notice, complaint has been filed against the applicants. On that basis, learned Magistrate took the cognizance for the aforesaid offence. Being aggrieved, this petition is filed on the ground that the complaint should have been filed by the Firm ­ M/s Avantika Ginning Factory; whereas it is filed by the Non-applicant Sanjay Dhoot which is not maintainable.

(3.) Learned counsel for the applicants submits that applicant No.4 has given two cheques to M/s Avantika Ginning Factory and the statutory notice is also sent by M/s Avantika Ginning Factory, therefore, the complaint should have been filed by M/s Avantika Ginning Factory; whereas the complaint is filed by Sanjay Dhoot. Sanjay Dhhot has received the cheques not in an individual capacity but as a Proprietor of M/s Avantika Ginning Factory, therefore, the complaint has not been filed properly and the order of taking cognizance is erroneous. For this purpose, learned counsel placed reliance on the judgment of Bombay High Court reported in the case of Bhupesh Rathod v/s Dayashankar Prasad Chaurasia [2015 (3) DCR 625] and the judgment of Hon'ble apex Court reported in the case of M/s Shankar Finance & Investments v/s State of Andhra Pradesh [2008 (4) MPHT 339 (SC)].