9911796707
TMI Blog2025 (5) TMI 930X X X X Extracts X X X X X X X X Extracts X X X X ..... Police Station-Civil Line, District Muzaffarnagar, pending before the Additional Court, N.I. Act Muzaffarnagar and also quash the summoning order dated 11.11.2024. 3. Learned counsel for the applicant has submitted that a complaint has been lodged by the opposite party no.2 on 7.5.2024 against while making Mark Engineer through its proprietor Bilal Hasan (applicant) as an accused party with an allegation that two cheques bearing no.172956 dated 12.3.2024 of Rs. 16,24,000/- and the second cheque bearing no.172957 dated 12.3.2024 of Rs. 6,01,800/- were drawn for Mark Engineers signed by authorised signatory and the said cheques were presented in the bank for three occasions and lastly on 22.3.2024 which came to be dishonoured on 25.3.2024, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stands accrued so as to make applicable the provisions of Section 138 of the N.I. Act. Thus it is submitted that the summoning order be quashed. 6. Learned AGA, on the other hand, submits that the issue as to whether the cheque was drawn or not is a matter of trial in the background of the provisions contained under Section 139 of the N.I. Act and further as per the description given in the complaint and in the present application, the firm in question is a sole proprietorship firm, thus there is no question of summoning the firm in that regard. 7. I have heard these submissions made across the bar and perused the record carefully. Apparently, two cheques dated 12.03.2024 for an amount of Rs. 16,24,000/- and Rs. 6,01,800 stood drawn by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt in the case of Abhishek Jain vs. State of U.P. & others, (2023) 0 Supreme (Alld.) 1581 had the occasion to consider the difference between a sole proprietorship firm and a partnership firm had opined as under:- "16. From the aforesaid observations made by the Apex Court, it is crystal clear that if the cheque is issued in the name of a firm, whether proprietorship or partnership firm, the proprietor or the partner as the case may be, becomes the holder in due course and he can sue in his own name and it is not necessary for him to sue in a trading name, though others can sue such firm in the trading name. Therefore, the instant complaint filed by the opposite party no.2, claiming himself to be a proprietor of the said firm in whose nam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2019 but since on 28.4.2022, the contract stood terminated by the N.H.A.I. and the cheques which were the part of the agreement dated on 12.2.2019 were misutilized and misused while submitting the same and getting it dishonour is concerned suffice to say that in the complaint itself the allegation is referable to the works executed by the complainant/opposite party no.2 on behalf of the applicant for the year 2019-20 wherein the total amount is stated to be due is Rs. 30,31,344/-. 12. Apart from the same the complaint lodged by the applicant before the court of Judicial Magistrate, Dehradun on 27.5.2024 also talks about certain negotiations being made and about the two undated cheques which is alleged to have been misused. 13. The questi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er two undated cheques bearing Cheque No. 172956 for Rs. 16,24,860/- & Cheque No. 172957 for Rs. 6,01,800/- in security of this order. 4. That the job of supply and laying of thermoplastic road marking paint (5041 sq mts. Only) worth Rs. 16,06,062/ was done by you, however 1700 delineators were not supplied by you and in the meantime, my client had made total payment of Rs. 14,60,000/- to you against the above said order from 14.08.2023 to 08.02.2024." 16. Apparently, the question as to whether the payments which were sought to be made by virtue of the subject cheques which were dishonoured is a subject matter of the contract which was terminated or not is a question of fact which is a matter of trial, however, this Court is not required ..... X X X X Extracts X X X X X X X X Extracts X X X X
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