TMI Blog2021 (9) TMI 148X X X X Extracts X X X X X X X X Extracts X X X X ..... complaint is maintainable against the name of the proprietor/proprietorship concern - the contention of learned counsel for the respondent is not acceptable. Cheque was stolen and misused or not - HELD THAT:- The respondent filed a private complaint before the Court and the matter was referred to the Police as per Ex. D.1, FIR has been registered as against the husband of the complainant and Kempegowda, but the Police filed 'B' Final report. The same was not challenged by the accused and the complaint filed by the accused came to be closed. But there is no evidence adduced by examining any other person or by producing any document to show that Kempegowda was working in his Bar and Restaurant. Therefore, the contention that the cheque was stolen by Kempegowda and it was misused by the husband of the complainant is not acceptable. Capacity of the complainant wherein the complainant examined herself - HELD THAT:- Though the respondent also produced the passbook showing that the cheque was given to Kempegowda, which was issued by him on 04.11.2019, but the said entries were made on the last page of the notebook. On perusal of the entire notebook, the name of Kempegowd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;N.I. Act'). 2. Heard the arguments of the learned counsel for the appellant/complainant and respondent/accused. 3. For the sake of convenience, the ranks of the parties before the Trial Court are retained for convenience. 4. The case of the complainant before the Trial Court is that she filed a complaint under Section 200 of Cr.P.C. against the accused for the offence punishable under Section 138 of N.I. Act alleging that she was well acquainted with the accused and on the basis of the said friendship, during the month of July 2008, the accused approached the complainant for hand loan of ₹ 2.00 Lakhs to clear his debts. Accordingly, she gave ₹ 2.00 Lakhs to the accused and the accused assured to repay the said amount within a short period, but failed to repay the said amount. When the complainant approached the accused and demanded for repayment of the said amount, he issued a cheque bearing No. 296500, dated 22.10.2008, drawn on State Bank of India, Jalahalli Branch, Bengaluru. Accordingly, the complainant presented the said cheque for collection through her Banker Vijaya Bank, Malleshwaram Branch, Bengaluru, but the said cheque was dishonored with an end ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such she was having good income, which is revealed in her evidence. Such being the case, the amount being paid by the complainant cannot be suspected. The Bank pass-book and the salary certificate were also produced by the complainant, which are marked as exhibits before the Trial Court. After considering the evidence, the Trial Court has rightly found the accused guilty and convicted him whereas, the First Appellate Court has reversed the same without any basis. The presumption under Section 139 of N.I. Act is available to the complainant and the same was not rebutted by the accused except examining himself and producing two documents. A complaint came to be filed by the accused after receiving notice and service of the notice, 'B' report has been filed by the Police on the basis of the said complaint. Therefore, the said document is not useful to the complainant to disprove the case. The defence taken by the accused is that a signed cheque was kept in the Bar, which was stolen by one of the employees by name, Kempegowda, who is none other than a friend of the husband of the complainant and the said cheque was misused by Kempegowda through the husband of the complainant. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ken in the initial stage in the reply notice, Ex. P6 and defence was taken in the cross-examination. It is not a new defence taken only in the cross-examination, but it was taken in the reply statement and the same was proved by him by preponderance of probabilities. Therefore, the learned counsel submits that the Trial Court has committed an error in convicting the accused and the First Appellate Court after re-appreciating the evidence has rightly acquitted the accused and therefore, prayed for dismissal of the appeal. 10. The learned counsel also submitted that the complainant had not denied in the cross-examination the issuance of cheque in respect of the loan and totally, there is no suggestion in the cross-examination, thereby, the accused was able to rebut the evidence of the complainant and there is no transaction and the cheque was issued not in respect of the said transaction. There is no legally liable debt payable by the accused to the complainant. Hence, prayed for dismissal of the appeal. 11. Having heard the arguments of the learned counsel, the following points arise for consideration of this Court: i) Whether the complaint is not maintainable against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 but Order 30, Rule 1, CPC enables the partners of a partnership firm to sue or to be sued in the name of the firm. A proprietary concern is only the business name in which the proprietor of the business carries on the business. A suit by or against a proprietary concern is by or against the proprietor of the business. In the event of the death of the proprietor of a proprietary concern, it is the legal representatives of the proprietor who alone can sue or be sued in respect of the dealings of the proprietary business. The provisions of Rule 10 of Order 30, which make applicable the provisions of Order 30 to a proprietary concern, enable the proprietor of a proprietary business to be sued in the business names of his proprietary concern. The real party who is being sued is the proprietor of the said business. The said provision does not have the effect of converting the proprietary business into a partnership firm. The provisions of Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idered view that the respondent is a proprietor of Manjunatha Bar and Restaurant. The complaint can be filed against the individual name of the proprietor Govindaraju or the name of the concern namely, Manjunatha Bar and Restaurant. Merely, because the complainant has not mentioned that it is a proprietorship concern represented by the proprietor Govindaraju, that itself is not a ground to say that the complaint against the respondent is not maintainable in view of Section 141 of N.I. Act. Section 141 of N.I. Act is not applicable in the case of proprietorship. The complaint can be filed against the name of the proprietor or the proprietorship concern. Mere non-mentioning the name of the accused as representative of the proprietary concern or proprietor, it cannot be said that the complaint is not maintainable. On the other hand, the complaint is maintainable against the name of the proprietor/proprietorship concern. Therefore, the contention of learned counsel for the respondent is not acceptable. 16. The appellant has stated in her evidence that the accused is a known person to her husband and the accused was in need of money. Therefore, she paid ₹ 2.00 Lakhs and in orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t that she had no capacity. Though the respondent also produced the passbook showing that the cheque was given to Kempegowda, which was issued by him on 04.11.2019, but the said entries were made on the last page of the notebook. On perusal of the entire notebook, the name of Kempegowda is no where found and no where it was mentioned that the said Kempegowda used to receive the cheque by signing in the notebook, but the accused might have created the document for the purpose of showing that the cheque was given to Kempegowda by making the entry in the last page of the notebook, which cannot be accepted. Even otherwise, the same was not marked. Therefore, the notebook cannot be considered as evidence. 18. Learned counsel for the respondent also relied upon various judgments in respect of presumption under Section 139 of the N.I. Act and I have gone through the same, wherein the involvement is more than ₹ 14.00 Lakhs and heavy amount. Therefore, the Hon'ble Apex Court has held that the complainant had no capacity to lend such an huge amount. but here in this case, the complainant produced the documents including the salary certificate, passbook to show her financial capa ..... 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