Indio Sun Marketing vs ICICI Bank Ltd.

Mr. P.N. Prakash, J.—The petitioners have come forward with this petition to quash the records in S.T.C. No.110 of 2015, on the file of Fast Track Court No. II, Madurai.

For the sake of convenience, the parties will be referred to as the complainant and accused. It is the specific case of the complainant that Indio Sun Marketing(A1) is a proprietary concern and it is owned by Arumuga Devar(A2). On a reading of the complaint, it is seen that Indio Sun Marketing represented by Arumuga Devar has availed loan from the complainant bank and A2 issued the impugned cheque, dated 06.11.2014 for a sum of Rs. 10,00,000/-, towards part payment of loan, and the same was dishonoured. The complainant issued statutory notice dated 19.11.2014 and has filed the present complaint for offence under Section 138 Negotiable Instruments Act, against Indio Sun Marketing/A1 represented by Arumuga Devar, and Arumuga Devar/A2 proprietor of Indio Sun Marketing.

Learned counsel for the petitioners/Accused submitted that prosecution against a proprietary concern is not maintainable, as it is not a juristic person in the eye of law. In support of his contention, learned counsel relied upon the following judgments:-

i) AIR 2007 Supreme Court 1634 (Raghu Lakshminarayanan v. M/s. Fine Tubes);

ii) 2009 (4) CTC 217 (N. Gopalan v. K. Dhayakumar) and

iii) 2010 (2) MWN (Cr.) DCC 72 (Nivin Knit Fashions v. N. Rajkumar)

There is sufficient force in the submissions of the learned counsel for the petitioners. A bare reading of the complaint shows that even according to the complainant, Indio Sun Marketing is a proprietary concern owned by Arumuga Devar. A1 has also been shown as A2 in the complaint. Under such circumstances, if this quash petition is admitted and interim stay is granted, it will further prolong the prosecution. Interest of justice would be served if prosecution as against Indio Sun Marketing(A1) is quashed and a direction is given to proceed with the trial as against Arumuga Devar (A2), proprietor of Indio Sun Marketing, as cheque has been issued by him.

In the result, the prosecution as against Indio Sun Marketing/A1 in S.T.C. No.110 of 2015 on the file of Fast Track Court No. II, Madurai, alone is quashed. The proceedings as against Arumuga Devar/A2 shall go on. The criminal original petition is partly allowed. Connected miscellaneous petitions are closed.