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Judgment
M. Karpagavinayagam, J.—These revisions are being disposed of through this common order, since, the respondent/complainant is the
same in all these revisions and most of the issues are common.
Vaidyanathan, the petitioner is Crl. R.C. Nos. 1019 to 1023 of 1998 is an accused in C.C. Nos. 5604 to 5607 of 1997 on the file of IX
Metropolitan Magistrate. Saidapet. Madras for an offence u/s 138 of the Negotiable Instruments Act thereinafter referred to as ""the Act"").
Deepika Milk Marketing represented by its Proprietrix Mrs. Revathi Vaidyanathan, the petitioner in Cri. R.C. No. 1024 of 1998 is the accused
in C.C. Nos. 5608 of 1997 on the file of IX Metropolitan Magistrate. Saidapet for an offence u/s 1.18 of the Act.
The petitioner on service of notice in the said private complaint, filed separate petition u/s 204 Cr. P.C. for dropping the said proceedings as
against them before the trial Court. Those applications were dismissed by the trial Court on 11.6.1988. Being aggrieved over the said common
order, the above revisions have been filed before this Court by both the petitioners.
The facts could be summarised as follows Mrs. Revathi Vaidyanathan is the Proprietrix of Deepika Milk Marketing. The complainant, the
respondent herein. Dodla Dairy Limited is the supplier of milk in bulk quantity. As requested by the accused, the complainant supplied bulk
quantity of milk on various dates since October 1996. Towards such supply, the petitioners owed a sum of Rs. 10,90,910.20. Mr. Vaidyanathan
is the husband of Mrs. Revathi Vaidyanathan the Proprietrix of Deepika Milk Marketing. Towards the discharge of the liability. Mr. Vaidyanathan
issued 12 cheques totaling rupees five lakhs between 5.5.1997 and 26.5.1997 and Mrs. Revathi Vaidyanathan as the Proprietrix of Deepika Milk
Marketing, issued a cheque for rupees three lakhs dated 16.4.1997, When these cheques were presented, they were returned unpaid for want of
funds. Since there was no payment towards the cheque amount even after the service of the statutory notices, six complaints were filed against the
petitioners, five complaints were taken on file against the said Vaidyanathan in C.C. Nos. 5604 to 5607 and 5609 of 1997 and one complaint was
taken on file against Mrs. Revathi Vaidyanathan as the Proprietrix of Deepika Milk Marketing in C.C. Nos. 5608 of 1997. The petitioners in their
petitions filed before the trial Court for dropping the proceedings raised several grounds. The trial Court after hearing the counsel for the parties,
dismissed the same holding that those grounds are untenable. Hence, these revisions.
Mr. Padmanabhan appearing for Mr. Vaidyanathan, the petitioner in Cri. R.C Nos. 1019 to 1023 of 1998 while reiterating the grounds urged
before the trial Court, would submit that the list of documents was not appended to the complaint and the same was not furnished to the accused,
that the resolution authorising the complainant to file the complaint was not filed, that there is no averment in the complaint that the cheque was
issued for the discharge of the liability and that Mr. Vaidyanathan is not proprietor of Deepika Milk Marketing which alone owed money to the
Company.
Mr. Ravi Anantha Padmanabhan in reply to the submissions, would point out that most of the grounds are not factually correct.
As pointed out by the counsel for the respondent, in the complaint it has been stated that the complainant was authorised by its Board of
Directors to file the complaint and the cheques were issued towards the discharge of the liability. Therefore, it is not proper on the part of the
petitioner to raise these grounds which are not based on the correct facts.
Regarding the non-supply of the documents, it is held by that Court in Ramesh v. Ramanujam. 1988 Cri. L.J. 1959 that in private complaint the
accused is not entitled to the documents, but however he is entitled to the copy of complaint alone. Therefore, this ground also has not merit.
The next ground is that Vaidyanathan the petitioner cannot be made as an accused, since he has no liability to be discharged, as the supply of
the materials was between the complainant and Deepika Milk Marketing only.
This position of law also has already been settled by this Court reported in 1992(2) K.L.T. 40 (Krishna Bai v. Arti Press) and by the High
Court of Kerala reported in 11 - 1994 (1) Cri 388 (Alexander v. Joseph Chacko). It is held in the said decisions for the purpose of Section 138
of the Negotiable Instruments Act. it is immaterial that the cheque was issued for discharge of this own debt or liability as it can be issued for
discharge of another man''s debt or liability. So this ground also fails
Yet another point raised by the counsel for the petitioner in Crl. R.C. No. 1024 of 1998 filed by Mrs. Revathi Vaidyanathan, the Proprietrix of
Deepika Milk Marketing is this: ""Deepika Milk Marketing is the Proprietrix concern which is not a firm. Therefore, it does to come within the
definition of the company and as such, the said Proprietrix concern which is a non-entity in the eyes of law. The cause title appended to the
complaint would reveal that the non-entity, namely. Deepika Milk Marketing is represented by its Proprietrix Mrs. Revathi Vaidyanathan as
accused. This is not maintainable under law.
The learned counsel for the respondent in this revision would contend that the cause title is correct, since Deepika Milk Marketing represented
by its Proprietrix Mrs. Revathi Vaidyanathan is the drawer of the cheque, who alone can be prosecuted u/s 138 of the Act. The counsel for both
the parties would cite several authorities to substantiate their respective pleas.
There is no dispute with regard to the fact that Section 141 of the Act is not applicable in this case as the said section would involve only
companies. As per the decision of this Court and the Apex Court, the company as well as the partners of the company can be jointly or separately
prosecuted. But, as agreed by the counsel for the both the parties, there cannot be any separate complaint against a proprietary concern, as it does
not come within the definition of firm or company as per Section 141 of the Act. It cannot also be debated that a firm has no separate legal entity
apart from its proprietor. In other words, a proprietary concern cannot fit in with the explanation of the company appended to Section 141 of the
Act.
But, the question that arises for consideration in the instant case is whether a prosecution could be launched against a proprietary concerned by
putting the cause title as proprietary concern represented by its proprietor.
In this context, it shall be noticed that the proprietary concern found in the cause title in the instant case has been separately prosecuted.
Therefore, it cannot be contended that the prosecution is not maintainable merely on the ground that the proprietorship has no legal entity.
As stated earlier, the cause title shows that Deepika Milk Marketing is represented by its Proprietrix Mrs. Revathi Vaidyanathan. It is true that
in Sri Sivasakthi Industries v. Arikant Metal Corporation, 1992 L.W.(Crl.) 347, the prosecution was quashed by this Court (Pratap Singh, J.) as
against the proprietary concern, as it was separately prosecuted holding that the proprietary concern is not a firm or a company.
But in the said case it was made clear that both the proprietorship concern as well as the proprietor are one and the same person and so the
prosecution as against the proprietor of the said concern can be continued and that during the course of trial the said proprietor could not raise the
contention that as a proprietor he cannot be proceeded with
It is also clearly observed in the said decision that both the proprietary concern and the proprietor are one and the same person. It is observed
by Hon''ble Arunachalam, J. (as he then was) in Raja v. State by DSP/APRS Vigilance TNEB Madras, 1990 L.W. (Cri.) 203, that a proprietary
firm has no separate legal entity apart from its proprietor, the firm name being another name of the proprietor himself.
In yet another decision in Raman v. Krishna Pharmaceutical Distributors (1994(III) C.C.R. 1601), Hon''ble Pratap Singh, J. as he then was
pleased to quash the proceedings as against Sri Janki Pharmacy, represented by Proprietor since the proprietorship concern is not the legal entity
holding that one Raman alone issued the cheque as a drawer of the cheque.
If the same analogy is applied to this case, it is clear that Section 138 of the Act contemplates that prosecution could be launched against the
drawer. According to the counsel for the respondent/complainant, the drawer, who issued the cheque in the instant case is the Deepika Milk
Marketing by its Proprietrix Mrs. Revathi Vaidyanathan and as such, the complaint against the said drawer is maintainable.
As discussed above, the name of the drawer cannot be dissected and there cannot be any prosecution against the proprietary concern alone.
Had there been prosecution against proprietorship separately or had there been Prosecution against Revathy Vaidyanathan individually, then there
is a point in urging that the drawer is not the accused.
As indicated above, it is settled position of law that the proprietorship concern by itself is not a legal entity apart from its proprietor; the
proprietary concern and the Proprietrix are one and the same person. To put it differently, the prosecution against the Proprietrix representing
proprietorship concern or proprietorship concern represented by Proprietrix are one and the same as both these things sink, sail and merge with
only the entity.
When it is brought to the notice of this Court that in the books of accounts of the bank concerned, the name of the drawer is mentioned as
Deepika Milk Marketing of which Proprietrix is Revathy Vaidyanathan it can be safely held that the prosecution is validly launched against the
drawer, as contemplated u/s 138 of the Act.
It shall be further made clear that both Proprietorship and Proprietrix are one and the same and it can be put in the cause title of the complaint,
while prosecuting the drawer, either as proprietorship concern represented by Proprietrix or the Proprietrix representing the proprietorship
concern, as both the things convey the same meaning.
In view of the above conclusion, these revisions are liable to be dismissed and accordingly, the same are dismissed. The trial Court is directed
to proceed with the trial against the petitioners and dispose of the same in accordance with law as expeditiously as possible.