TMI Blog2019 (5) TMI 796X X X X Extracts X X X X X X X X Extracts X X X X ..... pecifically for the purpose of Section 141 of the Act), has been defined to mean a body corporate or a firm or any other association of individuals. In this statutory context, it calls for examination whether a sole proprietary concern, qualifies or falls within the meaning of the term 'company' or a 'firm' used in that provision. In the present case, there is no defect in the complaint lodged against the applicant, in his capacity as the sole proprietor of the concern M/s Manoj Rice Mill. There was no requirement to implead his sole proprietary concern as an accused person nor there was any need to additionally implead the applicant by his trade name. Application dismissed. - Application U/S 482 No. - 33417 of 2017 - - - Dated:- 3-5-2019 - Saumitra Dayal Singh, J. For the Applicant : Sarita Mishra For the Opposite Party : G.A. ORDER SAUMITRA DAYAL SINGH,J. 1. Heard learned counsel for the parties. 2. The present 482 Cr.P.C. application has been filed to quash the judgment and order dated 27.07.2017 passed by Additional Sessions Judge, Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rietorship Firm or registered Firm. 5. Shri Madan Mohan Srivastava, learned counsel for the opposite party no. 2 and Sri Ankit Srivastava, learned AGA, on the other hand submit, the position in law is otherwise. The provision of Section 141 of the Act would not apply in the case of a sole proprietorship concern and that it would be restricted to a duly incorporated company or a partnership firm or an association of persons only. 6. Having heard learned counsel for the parties and having perused the record, in the first place there is no dispute to the fact that the applicant was running a sole proprietary concern in the name M/s Manoj Rice Mill. It was neither a partnership firm nor a company nor any other association of persons. Then, the provision of Section 141 of the Act reads:- 141. Offences by companies .- (1) If the person committing an offence under section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o doubt as to the meaning to be attributed to a body corporate . That has to be an entity artificially incorporated, either by a special statute enacted to incorporate such corporations or under a general statute such as the Companies Act whereunder public and private companies are commonly incorporated, or a duly constituted entity given such status under a statute such as co-operative societies, local authorities etc. constituted under different enactments. However, it can never be understood to include a proprietorship firm that is neither incorporated nor constituted by or under any statute. 10. As to the meaning to be attributed to the words association of individuals , the same has to be understood as an entity created by the free will of more than one individual, for furtherance of a common object or purpose. The use of the plural form of the word 'individual' itself leaves no room for any doubt in that regard. Then, for any 'association' of individuals to arise, there have to exist at least two individuals to form it. A single individual may never form an association with himself. 11. Thus, the phrase association of indiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its partner/s has/have to be impleaded as an accused person in any criminal complaint, that may be filed alleging offence committed by the firm. However, there is no indication in the statute to stretch that legal fiction to a sole proprietary concern. 15. Besides, in the case of a sole proprietary concern, there are no two persons in existence. Therefore, no vicarious liability may ever arise on any other person. The identity of the sole proprietor and that of his 'concern' remain one, even though the sole proprietor may adopt a trade name different from his own, for such 'concern'. Thus, even otherwise, conceptually, the principle contained in section 141 of the Act is not applicable to a sole-proprietary concern. 16. In the case of Ashok Transport Agency v. Awadhesh Kumar, (1998) 5 SCC 567 , it has been held : 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 but Order XXX Rule 1 CPC enables the partners of a partnership firm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... like the Negotiable Instruments Act to make the Directors, partners or other persons, in charge of and control of the business of the company or otherwise responsible for its affairs; the company itself being a juristic person. 9. The description of the accused in the complaint petition is absolutely vague. A juristic person can be a company within the meaning of the provisions of the Companies Act, 1956 or a partnership within the meaning of the provisions of the 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 ..... (juristic person) as an accused person. The other category of offenders i.e. natural person/s may be arraigned only on the touchstone of vicarious liability. 21. That three judge decision of the Supreme Court is based on and follows the earlier three judge decision of that Court in St. of Madras Vs C.V. Parekh and anr. (1970) 3 SCC 491 , the principle laid down and applied being, in the case of an offence being committed by a juristic person, the occasion to proceed against the person authorized by such person would arise only if the latter is first arraigned as an accused person and held guilty. 22. Plainly, there is no ratio laid down, that in case of a soleproprietary concern, both the business concern and the sole proprietor would be liable to be prosecuted or be impleaded as accused person in the criminal complaint. To that extent, the decision of the learned single judge in Hitendra Kishan Lal Jain (supra) , is not based on a correct reading of Aneeta Haada (supra) . 23. The above principle enunciated in Aneeta Haada (supra) or C.V. Parekh (supra) has no bearing in the case of a sole-proprietary concern. Neither there e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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