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TMI Blog2023 (10) TMI 717X X X X Extracts X X X X X X X X Extracts X X X X ..... missing the revision petition filed by the petitioner; ii. allowing the application filed by petitioner under Section 243 read with Section 293 of Cr.P.C. read with Section 45 and 73 of Indian Evidence Act, 1872 seeking examination of the cheque in question by Government Scientific Expert and another application seeking summoning of the witnesses as mentioned in the application. 2. The factual background of the present case, in brief, is that respondent no. 2/complainant 'M/s. Rakesh Press' had filed a complaint under Section 138 of Negotiable Instruments Act, 1881 ('NI Act') whereby it was stated that the complainant was engaged in the business of printing books, magazines and other periodicals for respondent no. 3/accused i.e. 'M/s. Duggals Print House', a sole proprietorship concern, and as on 02.07.2014, there was an outstanding balance to the tune of Rs. 11,08,802/- against respondent no. 3. It was alleged that towards the said liability, the sole proprietor of respondent no. 3 i.e. Mr Siddharth Duggal (petitioner herein) had acknowledged his liability as on 31.03.2016 and letters were also exchanged between the complainant and the accused. Eventually, as alleged, a cheq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rguments on another application moved by Ld. Counsel for accused for summoning of witnesses heard. Witness mentioned at serial no. 1 is Director, Forensic Science Laboratory. Since, the application seeking scientific examination of the cheque is dismissed above, examination of this witness is automatically disallowed. No purpose will be served by examination of the witness mentioned at serial no. 2, bank witness as the signature of the cheque has already been admitted by accused no. 2 in response to Notice u/s 251 CrPC dated 06.03.2018, hence, the said witness is disallowed as well. Status of the accused firm has not been in dispute, hence witness mentioned at serial no. 3, VAT department is also disallowed..." 4. Aggrieved by the aforesaid order, the petitioner had preferred a revision petition before the learned ASJ. By way of order dated 23.01.2023, the learned ASJ had also dismissed the revision petition filed by the petitioner on the ground that there was no infirmity in the order of learned Magistrate and that neither the examination of cheque was required as there was no material alteration in the same, nor the witnesses as mentioned in the application were necessary to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... account holder; and officials from VAT department to prove the status of respondent no. 3 i.e. whether it was a sole proprietorship or otherwise and as to who was the sole proprietor of the said firm. 7. Learned counsel for the petitioner argues that the cheque in question was issued by respondent no. 3 which was the sole proprietorship firm of petitioner's mother and though the cheque had been signed by the petitioner herein, the same had been done only in the capacity of authorised signatory of the accused firm, and since he was/is not the proprietor of the accused firm, he is not liable to pay any amount to the complainant. It is also stated that the impugned order passed by learned ASJ suffers from illegality especially on the ground that the learned ASJ wrongly held that the petitioner being authorised signatory of the proprietorship firm would be liable in view of the provisions of Section 141 of NI Act. In this regard, it is argued by learned counsel that Section 141 has no application to a sole proprietorship firm and even the complaint filed by the respondent no. 2 was only under Section 138 of NI Act and not under Section 141. It is stated that the petitioner had already ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereby gives prima facie authority to the holder thereof to make or complete as the case may be upon it, a negotiable instrument for any amount specified therein and not exceeding the amount covered by the stamp. Section 49 permits the holder of a negotiable instrument endorsed in blank to fill up the said instrument by writing upon the endorsement, a direction to pay any other person as endorsee and to complete the endorsement into a blank cheque, it makes it clear that by doing that the holder does not thereby incur the responsibility of an endorser. Likewise, Section 86 states that where the holder acquiesces in a qualified acceptance, or one limited to part of the sum mentioned in the bill, or which substitutes a different place or time for payment, or which, where the drawee are not partners, is not signed by all the drawees, all previous parties whose consent has not been obtained to such acceptance would stand discharged as against the holder and those claiming under him, unless on notice given by the holder they assent to such acceptance. Section 125 NI Act permits the holder of an uncrossed cheque to cross it and that would not render the cheque invalid for the purposes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sake of arguments, the same cannot be considered as 'material alteration'. Section 138 NI Act does not contemplate that whenever any cheque is issued then the drawee must fill all the details in the cheque in his own handwriting for its validity u/s 138 NI Act. Even if, the contention of the revisionist is accepted as regard undated cheque, the same would be covered within the provision of Section 138 NI Act, so long as, the revisionist has admitted his signatures on the cheque. Therefore, the Ld. MM was fully justified in dismissing the application of the revisionist for sending the cheque in question to FSL. I do not find any infirmity in the order of the Ld. MM dismissed the first application of the revisionist..." 11. In this regard, a reference can also be made to the decision of Hon'ble Apex Court in case of Bir Singh v. Mukesh Kumar(2019) 4 SCC 197, in which it was held as under: "33. A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lainant had also relied upon a letter, which as per the case of complainant, reflects that the petitioner had admitted the existence of liability towards the complainant in the year 2016. 13. Thus, this Court does not find any infirmity with the orders passed by both the Courts below by way of which the application filed by the petitioner under Section 243 read with Section 293 of Cr.P.C. read with Section 45/73 of Indian Evidence Act, 1872 was dismissed. Accordingly, the orders of dismissal of application seeking summoning of Director, FSL also warrants no interference. 14. Needless to say, the issue as to whether the cheque was actually issued in respect of any legally enforceable debt or was a security cheque which had been misused shall be decided by the learned Trial Court on the basis of material available on record, testimonies of the witnesses and the arguments addressed before it at the final stage of adjudication, as per law. 15. However, as regards the second issue i.e. whether the petitioner can be held liable, by virtue of Section 141 of NI Act, even if it is proved that he is not the sole proprietor of the accused firm, this Court finds merit in the argument of lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny reference to sole proprietorship firm means and includes sole proprietor thereof and vice versa. Sole proprietorship firm would not fall within the ambit and scope of Section 141 of the Act, which envisages that if the person committing an offence under Section 138 is a company, every person who, at the time of 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 shall be liable to be proceeded against and punished accordingly. Company includes a partnership firm and any other association of individuals. The sole proprietorship firm would not fall within the meaning of partnership firm or association of individual. Vicarious liability cannot be fastened on the employees of a sole partnership firm, by taking aid of Section 141 of the Act, inasmuch as, no evidence has been led to show that the business was run by the respondent no. 2..." (Emphasis supplied) 17. Thus, a perusal of the aforesaid judicial precedents makes it clear that is only the sole proprietor who can be held liable under Section 138 of NI Act for dishonour of a cheque, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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