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2022 (6) TMI 607 - HC - Indian LawsDishonor of Cheque - insufficiency of funds - rebuttal of Statutory presumptions under Sections 118 and 139 of NI Act - acquittal of the accused - HELD THAT:- It is settled position of law that a proprietary concern is not an independent juridical entity, apart from its proprietor. On perusal of the record including the evidence led by the parties, it is seen that the complainant, in the body of the complaint as also in the evidence, had categorically stated that he was the sole proprietor of M/s Zenith Constructions, which averments were not denied by the accused in the cross examination nor had he replied to the statutory notice issued by the complainant. However, it is also seen that absolutely no documentary evidence has been placed on record by the complainant to establish that he is the sole proprietor of “Zenith Constructions” which was a proprietary concern. The title “M/s” used in the complaint, affidavit-in-evidence, agreement dated 04.09.2010 and in the statutory notice, before the words “Zenith Constructions”, may also lead to an inference, that it was actually a partnership firm. In such circumstances, if it was not actually a partnership, but an individual proprietary concern, the burden to prove the same lay squarely on the complainant. On the other hand, the claim of the complainant that he was the sole proprietor of Zenith Constructions was also not denied by the accused. In view of this, it would only be appropriate to remit the matter to the Trial Court to clearly reach a definite finding whether the complainant is the sole proprietor of Zenith Constructions or not. An opportunity shall be given to the complainant to establish the fact that he is the sole proprietor of Zenith Constructions which is shown as “payee” in the cheque in question. The accused would also be questioned under Section 313 of the Cr.P.C. in the light of the evidence that may be adduced by the complainant in this regard and if so desired, to adduce evidence in rebuttal. After obtaining such further evidence, as may be adduced by the party/parties, the case shall be decided afresh in accordance with law, within three months from the date of appearance of the parties - The parties shall appear before the learned Trial Court on 20.06.2022.
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