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TMI Blog2020 (10) TMI 575X X X X Extracts X X X X X X X X Extracts X X X X ..... ion No. 552 of 2018 (Dhirendra Vs. State of U.P. and Another) and to quash the summoning order dated 28.3.2012 as well as entire proceeding of Complaint Case No. 1500 of 2011 pending in the court of Additional Court No. 3, Agra. 2. Brief facts of this case are as follows-: That respondent no. 2 stated that present petitioner borrowed Rs. 1,00,000/- from him and on 8.2.2011, the petitioner handed over two cheques bearing no. 850213 & 850214 dated 9.4.2011 and 15.4.2011, respectively. Cheques were presented before the Bank but the same were dishonoured due to insufficient amount in the account. ON 18.10.2011, respondent no. 2 sent a notice to the petitioner and same was served but all in vain. On 8.11.2011, respondent no. 2 filed a complain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... end to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless- (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, 20[within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the hold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f security for payment of money. So in these circumstances, no need to arraign the firm as a party. 7. I have heard learned counsel for the petitioner, Dr. S.B. Maurya, the learned A.G.A. and perused the material available on record. 8. Perusal of cheques shows that it is drawn by the petitioner and petitioner admitted that impugned cheques bearing his signature. It is also not disputed that the petitioner is proprietor of the firm M/s M/s Rashmi Arosole & Chemicals, main contention of the petitioner is that the prosecution could not launch unless and until the firm arraign as accused. The provision of Section 141 in The Negotiable Instruments Act, 1881 read as under:- 21 [ 141 Offences by companies. - (1) If the person committing an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... company" means any body corporate and includes a firm or other association of individuals; and (b) "director", in relation to a firm, means a partner in the firm.]" 9. A plain reading of the provision makes it clear, if the person committing the offence is a "company", in that event every natural person responsible for such commission as also the artificial person namely the company shall be deemed to be guilty of the offence and be liable to be proceeded against and punished accordingly. Also, certain other natural persons may be held guilty, if so proved. 10.Perusal of the registration of firm, Annexure no. 1, it transpires that the petitioner is the proprietor of the firm namely M/S Rashmi Arosole & Chemical Avas Vikas Colony, Secto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y concern) remains identified to the individual who owns it. It does not bring to life any new or other legal identity or entity. No rights or liabilities arise or are incurred, by any person (whether natural or artificial), except that otherwise attach to the natural person who owns it. Thus it is only a 'concern' of the individual who owns it. The trade name remains the shadow of the natural person or a mere projection or an identity that springs from and vanishes with the individual. It has no independent existence or continuity. 14. In the context of an offence under section 138 of the Act, by virtue of Explanation (b) to section 141 of the Act, only a partner of a 'firm' has been artificially equated to a 'director ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s trade name. 17.On perusal of the averment of the parties, it is crystal clear that petitioner taken the money in advance by way of loan and petitioner handed over the cheques bearing no. 850213 & 850214 amount of Rs. 50,000/- each only for the security for payment of money advance by way of loan. So the transaction of money and cheques not in the prosecution of business of firm but cheques handed over by petitioner to Nepal Singh in individual capacity. So due to aforesaid reason too no need to implead the sole proprietor firm by his firm name. 18.So the reason aforesaid, there is no illegality or irregularity in the orders dated 31.10.2018 passed by Additional Court No. 3, Agra and the order dated 6.2.2020 passed by Additional Sessions ..... X X X X Extracts X X X X X X X X Extracts X X X X
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