TMI Blog2007 (4) TMI 367X X X X Extracts X X X X X X X X Extracts X X X X ..... ed:- 5-4-2007 - S.B. SINHA AND MARKANDEY KATJU, JJ. G. Sivabalamurugan, Y. Arvnagiri and L.K. Pandey for the Appellant. Ms. Tatini Basu for the Respondent. JUDGMENT S.B. Sinha, J. - Leave granted. 2. Appellant before us was arrayed as accused No. 3 in the Complaint Petition filed by the first respondent herein, before the Chief Metropolitan Magistrate, Delhi which was registered as a Complaint Case No. 379/1/2003. The said complaint petition was filed for trying the accused persons named therein for commission of an offence under section 138 of the Negotiable Instruments Act alleging that a cheque dated 15-8-2002 was issued by the accused Nos. 2 to 6 for a sum of Rs. 2 lakhs drawn at Canara Bank which on prese ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . .After the pre-summoning evidence was recorded the learned MM found that prima facie case was made out against all the accused persons and, therefore, summoned these accused, challenging these summoning orders accused No. 3 has filed this petition under section 482 Cr. P.C. it is, inter alia , contended that he was never the director of the said accused No. 1: cheque in question was not signed by him and that he was not responsible for the conduct of business of accused No. 1 it is the case of the petitioner that he was an employee of the accused No. 1. In support appointment letter dated 15-7-2000 is enclosed as per which petitioner was appointed as Director-Production . In this capacity he was to be responsible for entire productio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or a partnership within the meaning of the provisions of the Indian Partnership Act, 1932 or an association of persons which ordinarily would mean a body of persons which is not incorporated under any statute. A proprietary concern, however, stands absolutely on a different footing. A person may carry on business in the name of a business concern, but he being proprietor thereof, would be solely responsible for conduct of its affairs. A proprietary concern is not a Company. Company in terms of the Explanation appended to section 141 of the Negotiable Instruments Act, means any body-corporate and includes a firm or other association of individuals. Director has been defined to mean in relation to a firm, a partner in the firm. Thus, wherea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, described him as incharge, Manager and Director of the accused No. 1. A person ordinarily cannot serve both in the capacity of a Manager and a Director of a Company. 13. The distinction between partnership firm and a proprietary concern is well-known. It is evident from Order XXX, rule 1 and Order XXX, rule 10 of the Code of Civil Procedure. The question came up for consideration also before this Court in Ashok Transport Agency v. Awadhesh Kumar [1998] 5 SCC 567 wherein this Court stated the law in the following terms: "6. A partnership firm differs from a proprietary concern owned by an individual. A partnership is governed by the provisions of the Indian Partnership Act, 1932. Though a partnership is not a juristic person b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Partnership Firm as envisaged under section 34 of the Companies Act, 1956 and section 4 of the Indian Partnership Act, 1932 respectively, but, we may only note that it is trite that a proprietary concern would not answer the description of either a Company incorporated under the Indian Companies Act or a firm within the meaning of the provisions of the section 4 of the Indian Partnership Act. 15. A Constitution Bench of this Court in S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla AIR 2005 SC 3512 1 furthermore categorically state that the complaint petition must contain the requisite averments to bring about a case within the purview of section 141 of the Act so as to make some persons other than company vicariously liable therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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