TMI Blog2022 (6) TMI 607X X X X Extracts X X X X X X X X Extracts X X X X ..... ually a partnership firm. In such circumstances, if it was not actually a partnership, but an individual proprietary concern, the burden to prove the same lay squarely on the complainant. On the other hand, the claim of the complainant that he was the sole proprietor of Zenith Constructions was also not denied by the accused. In view of this, it would only be appropriate to remit the matter to the Trial Court to clearly reach a definite finding whether the complainant is the sole proprietor of Zenith Constructions or not. An opportunity shall be given to the complainant to establish the fact that he is the sole proprietor of Zenith Constructions which is shown as payee in the cheque in question. The accused would also be questioned under Section 313 of the Cr.P.C. in the light of the evidence that may be adduced by the complainant in this regard and if so desired, to adduce evidence in rebuttal. After obtaining such further evidence, as may be adduced by the party/parties, the case shall be decided afresh in accordance with law, within three months from the date of appearance of the parties - The parties shall appear before the learned Trial Court on 20.06.2022. - CRIMINAL A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the present case. 3. On presentation, the said cheque was returned dishonoured with the remark funds insufficient . Payment was not made despite demand through statutory legal notice dated 15.10.2011, and ultimately the complaint in question was filed on 08.12.2011 before the Trial Court in respect of the disputed Cheque No. 574324 dated 03.10.2011 of ₹32,00,000/-. 4. In the cross examination of the complainant, execution of the agreement dated 04.09.2010 was not denied nor the fact of receipt of the amount of ₹25,00,000/-. The fact of issuance of statutory notice and receipt of the same by the accused was also not denied. It was suggested in the cross examination of the complainant that the accused had given a blank cheque but it was as a security and not to meet any legal liability and that the money was given as loan. As such, the accused had admitted his signature on the cheque and the execution of the cheque. Therefore, the presumptions under Sections 118 and 139 of the Act were attracted. Merely suggesting to the complainant that the cheque was given as security is not sufficient to rebut the statutory presumption which is in favour of the complainant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e affidavit-in-evidence in this regard is not sufficient to establish the fact that the complainant was the sole proprietor of Zenith Constructions. No documentary evidence was placed on record to show that the complainant, in fact, was the sole proprietor of Zenith Constructions. Reliance has been placed on Milind Shripad Chandurkar vs. Kalim M. Khan and Anr. (2011) 4 SCC 275. 6. It is settled position of law that a proprietary concern is not an independent juridical entity, apart from its proprietor. On perusal of the record including the evidence led by the parties, it is seen that the complainant, in the body of the complaint as also in the evidence, had categorically stated that he was the sole proprietor of M/s Zenith Constructions, which averments were not denied by the accused in the cross examination nor had he replied to the statutory notice issued by the complainant. However, it is also seen that absolutely no documentary evidence has been placed on record by the complainant to establish that he is the sole proprietor of Zenith Constructions which was a proprietary concern. 7. The Trial Court has dealt with the issues elaborately and recorded the following findin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th Constructions For Rs. Mapusa Branch sole proprietary concern of 15,00,000/- me (sic) 10. Mr. S.D. Lotlikar, the learned Senior Counsel appearing on behalf of the complainant-appellant, pointed out that in the agreement dated 04.09.2010 executed between the accused, his wife and the complainant, it was specifically mentioned that the complainant was carrying on business as a builder and developer in the name and style of his sole proprietary concern M/s Zenith Constructions. Similarly, in the statutory notice issued by the complainant to the accused, it was specifically mentioned that the complainant was the sole proprietor of M/s Zenith Constructions. It is also pointed out that the accused did not reply to the said notice. In the cross examination of the complainant, it was nowhere even suggested that he was not the sole proprietor of Zenith Constructions. 11. In the case of Milind Shripad Chandurkar (supra), the appellant-complainant could not produce any document to show that he was the proprietor of Vijaya Automobiles inspite of the fact that issue had been agitated by the accused-respondent at every stage. But, here in the instant case, during the trial, the fact of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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