PURSHOTTAM DASS NIRANJAN LAL Vs. NAHAR FIBRES (PROPRIETOR)

JUDGEMENT

(1.) Respondent has complained that M/s Nahar Fibres is a proprietor of M/s Nahar Spinning Mills Ltd. Petitioner No.1 is a proprietorship concern, whereas petitioner No.2 is its proprietor and authorised signatory. Complainants have been supplying yarn to one Maral Overseas Limited (Khargone) Moral Sarorar, VPO Khal Bujurg, Tehsil Hhosrulad, District Khargoan, Madhya Pradesh through the petitioners. Through various bills, they have been getting part payments. After adjustment of the part payments, an amount of Rs. 9,81,333-75P. was due on 31.7.2012. It is alleged that the yarn was supplied to M/s Maral Overseas Ltd. through the petitioners-accused, who stood surety and issued a cheque dated 31.5.2012 for Rs. 8,70,186/- drawn on Citi Bank honoring Nahar Fibres (Unit of complainants). The aforesaid cheque was accordingly presented for encashment to the bankers. The cheque was returned unpaid vide Memo dated 8.8.2012 with the remarks "that the payment is stopped by the drawer". As per the allegations, there were no funds in the account to honour their legal liability and they have connived with the bank officials and got issued the memo of payment stopped.

(2.) Complainant issued a registered A.D. legal notice on 21.8.2012 calling upon the accused to make payment within 15 days. Despite service of notice, the petitioners failed to make payment of the cheque amount and, thus, incurred a liability under Section 138 of the Negotiable Instruments Act (for short "the Act"). The complainant accordingly has filed a complaint in the Court of Shri Rahul Kumar, Judicial Magistrate Ist Class, Ludhiana, who took cognizance of the same and has summoned the petitioners. The petitioners accordingly have approached this Court for quashing of the summoning order and the complaint on various counts.

(3.) Plea is that this summoning order has been issued mechanically on the complaint. Continuation of this proceeding is stated to be an abuse of the process of law. It is alleged that the trial Court failed to consider that the complaint has been filed by M/s Nahar Fibers as proprietor of M/s Nahar Spinning Mills Ltd. and as per the law, a proprietorship concern has no separate legal entity except of the proprietor himself. It is stated that complaint has been filed by an entity, who has no legal existence in the eyes of law. The trial Court has, thus, statedly erred in taking cognizance to the criminal complaint.