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TMI Blog2021 (9) TMI 148X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 Rs. 2.00 Lakhs to clear his debts. Accordingly, she gave Rs. 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 endorsement "insufficient funds", on 22.10.2008 and 22.11.2008. The complainant informed the accused and got issued a legal notice on 10.12.2008 by R.P.A.D. and UCP, which was served on the accused, but the accused failed to repay the cheque amount. Hence, the complaint came to be filed. 5. After ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, 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. The same was not proved by the accused by examining any other witness or by producing any other document except Exs. D1 and D2. Therefore, prayed for restoring the judgment of the Trial Court by setting aside the judgment of the First Appellate Court. 8. The learned counsel also in reply to the arguments of the learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 proprietor without impleading the bar and restaurant as accused No. 1 (i.e. proprietorship concern)? ii) Whether the judgment of acquittal passed by the First Appellate Court is illegal, perverse and liable to be interfered with?" 12. Learned counsel for the respondent mainly argued that without making the Bar and Restaurant as acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Rule 4 of Order 30 have no application to such a suit as by virtue of Order 30, Rule 10 the other provisions of Order 30 are applicable to a suit against the proprietor of proprietary business 'insofar as the nature of such case permits'. This means that only those provisions of Order 30 can be made applicable to proprietary concern which can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aju, 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 Rs. 2.00 Lakhs and in order to repay the same, the accused gave a cheque, which was dishonoured. Signing the cheque by the accused is not in dispute. The cheque was dishonoured for "insufficient funds" also not in dispute. Learned counsel for the respondent has taken two contentions, mainly that the complainant has capacity to pay Rs. 2.00 Lakhs and cheque was signed and kept in the Bar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Rs. 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 capacity other than her husband's income. Therefore, the contention raised by the respondent-accused that she had no capacity to pay the loan of Rs. 2.00 Lakhs to the accused cannot be acceptable. 19. Another contention raised by the respondent is that the complainant has not examined her husband, who is the friend of the accused. Merely her husband was not examined before the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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