# Lalit Chaprana v. State of U.P. & Anr

- **Citation:** (2024) 12 ILRA 5
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-12-18
- **Case number:** Application U/S 482 No. 8609 of 2024
- **Bench:** Arun Kumar Singh Deshwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lalit-chaprana-v-state-of-u-p-anr-51228
- **Pages:** 9

## Headnote

Criminal Law-The Negotiable Instruments
Act,1881-Sections 138 & 141 -The Code of
Civil Procedure, 1980-Order 30 Rule 1 to
10-Proprietorship firm has no individual identity.
It is always associated with its proprietor and in
case of proprietorship concern, question of
vicarious liability does not arise and only
proprietor of the proprietorship concern will
be liable, whether proprietorship concern is
arrayed as accused through it proprietor or
proprietor himself is arrayed as a party. In
both the cases there will be individual
liability of the proprietor and proprietorship
concern has no different identity. It is used
only for the business purposes; the real
identity
is
its
proprietor---
For
taking
cognizance the complaint should have been
filed after expiry of 15 days from the service
of demand notice--- In the present case
admittedly the demand notice was served
upon the applicant on 9.3.2021. Therefore,
the complaint could have been filed after
24.3.2021 but the complaint was filed on
22.3.2021. Therefore, the complaint is premature.

Compliant quashed. (E-15)

List of Cases cited:

## Text

12 All. Lalit Chaprana Vs. State of U.P. & Anr.
5
(2024) 12 ILRA 5
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.12.2024

BEFORE

THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

Application U/S 482 No. 8609 of 2024

Lalit Chaprana ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Pradeep Kumar Keshri

Counsel for the Opposite Parties:
G.A.

Criminal Law-The Negotiable Instruments
Act,1881-Sections 138 & 141 -The Code of
Civil Procedure, 1980-Order 30 Rule 1 to
10-Proprietorship firm has no individual identity.
It is always associated with its proprietor and in
case of proprietorship concern, question of
vicarious liability does not arise and only
proprietor of the proprietorship concern will
be liable, whether proprietorship concern is
arrayed as accused through it proprietor or
proprietor himself is arrayed as a party. In
both the cases there will be individual
liability of the proprietor and proprietorship
concern has no different identity. It is used
only for the business purposes; the real
identity
is
its
proprietor---
For
taking
cognizance the complaint should have been
filed after expiry of 15 days from the service
of demand notice--- In the present case
admittedly the demand notice was served
upon the applicant on 9.3.2021. Therefore,
the complaint could have been filed after
24.3.2021 but the complaint was filed on
22.3.2021. Therefore, the complaint is premature.

Compliant quashed. (E-15)

List of Cases cited:
1. M.M. Lal Vs St. of N.C.T. of Delhi & ors.;
Criminal Leave Petition No. 290 of 2010 decided
on 14.9.2012

2. Ashok Transport Agency Vs Awadhesh Kumar
& anr.; (1998) 5 SCC 567

3. Raghu Laxminarayanan Vs Fine Tube; (2007)
5 SCC 103

4. Alka Khandu Avhad Vs Amar Shyamprasad
Mishra & anr.; (2021) 4 SCC 675

(Delivered by Hon'ble Arun Kumar Singh
Deshwal, J.)

1. Heard Sri Byas Kr. Prasad,
Advocate holding brief of Sri Pradeep
Kumar Keshri, learned counsel for the
applicant, Sri Khwaja Shamshad Ahmad,
learned counsel for opposite party No.2 and
Sri Pankaj Saxena, learned A.G.A. for the
State.

2. The instant application has been
filed seeking quashing of the entire
proceeding of Complaint Case No. 4501 of
2021
(Parvinder
Singh
vs.
Mahadev
Enterprises), under Section 138 N.I. Act,
P.S. Hapur Nagar, District Hapur, pending
before C.J.M., Hapur as well as the
impugned
summoning
order
dated
14.9.2021.

3. The facts giving rise to the present
case are that Rs.20,50,000/- was given by
opposite party No.2 to the applicant as loan
in June, 2020 on persuasion of the
applicant and co-accused to obtain contract
in the name of the firm Mahadev
Enterprises and just to return that amount a
cheque of Rs.29,50,000/- dated 6.1.2021
was given by the applicant on behalf of his
proprietorship
concern
(Mahadev
Enterprises) to opposite party No.2 but on
presenting the same before the bank, the
same was dishonoured on 15.1.2021 and it
6 INDIAN LAW REPORTS ALLAHABAD SERIES
was again presented before the bank on the
advice of the applicant on 29.1.2021 but the
same was dishonoured by the bank on
30.1.2021 with the endorsement "payment
stop by drawer". Thereafter, that cheque
was again presented (third time) before the
bank on the advise of the applicant on
23.2.2021 but the same was again returned
by the bank on 24.2.2021 with the
endrosement
"payment
stopped".
Thereafter, opposite party No.2 sent a
registered demand notice to the applicant
on 4.3.2021 which was delivered to the
applicant on 9.3.2021, but despite expiry of
15 days, the cheque amount was not paid
then the impugned complaint was filed in
which the applicant was summoned by
order dated 14.9.2021.

4.
This
matter
was
heard
on
19.11.2024 and on that date learned
counsel for the applicant has submitted that
the cheque in question was issued on behalf
of the proprietorship concern of the
applicant (Mahadev Enterprises) but the
applicant was summoned despite the fact
that the applicant was not impleaded as
accused in the complaint, therefore, the
proceeding against the applicant is barred
by Section 141(1) N.I. Act as the proprietor
of business concern cannot be prosecuted
unless he is made party in the complaint
and specific averment is made in the
complaint that the proprietor was incharge
of and responsible for the day to day
business of the proprietorship concern.
After hearing the above argument, this
Court framed a question whether a sole
proprietorship concern will come within the
definition of "company" in Explanation (a)
to Section 141 N.I. Act.

5. Learned counsel for the applicant
also submitted that in respect of the cheque
in
question
of
Rs.20,50,000/-,
the
applicanbt has already paid Rs.4 Lakh
through a cheque No. 000858 dated
12.7.2021. It is further submitted that on
bouncing of the cheque of Rs.4 Lakh,
which is a part payment of Rs.20,50,000/-,
in respect of the cheque in question,
another complaint No. 4501 of 2021 has
been filed by the applicant, therefore, for
one liability applicant is pursuing two
cases; first the present impugned complaint
and another being Complaint Case No.
4501 of 2021. Therefore, the proceeding
deserves to be quashed.

6. One more submission was also
advanced by the counsel for the applicant
that admittedly as per the complaint, the
demand notice was served upon the
applicant on 9.3.2021 but the impugned
complaint was filed on 22.3.2021 before 15
days from the date of service of the demand
notice, therefore, the complaint is pre -
mature.

7. Learned counsel for the applicant
also fairly submits that in the case of M.M.
Lal vs. State of N.C.T. of Delhi and
others; Criminal Leave Petition No. 290 of
2010 decided on 14.9.2012, the Single
Bench of the Delhi High Court has
observed that the sole proprietorship firm
would not fall within the meaning of
partnership
firm
or
association
of
individuals.

8. However, learned counsel for
opposite party No.2 has submitted that it is
undisputed that the cheque in question as
well as the cheque of another complaint has
been issued by the applicant, therefore,
presumption under Section 139 NI. Act is
attracted and this ground can be raised by
the applicant during trial. But the learned
counsel for the applicant could not dispute
the fact that the impugned complaint has
12 All. Lalit Chaprana Vs. State of U.P. & Anr.
7
been filed on 22.3.2021, after the notice
sent by him was delivered upon the
applicant on 9.3.2021.

9. Learned A.G.A. has also relied
upon the judgements of the Apex Court in
the cases of Ashok Transport Agency vs
Awadhesh Kumar and another; (1998) 5
SCC 567, Raghu Laxminarayanan vs.
Fine Tube; (2007) 5 SCC 103 as well as
Alka
Khandu
Avhad
vs.
Amar
Shyamprasad
Mishra
and
another;
(2021) 4 SCC 675 and he vehemently
contends that the Explanation (a) to Section
141 N.I. Act clearly prescribed company,
firm or other association of individuals,
therefore, if any body of individuals is
registered that would fall under Section 141
N.I. Act not the proprietorship firm.

10. After hearing the submissions of
learned counsel for the parties, it would be
pertinent to refer Section 141 N.I. Act
which is being quoted as under:-

"Section-141.
Offences
by
companies.-(1) If the person committing
an offence under section 138 is a company,
every person who, at the time the 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:

Provided that nothing contained
in this sub-section shall render any person
liable to punishment if he proves that the
offence
was
committed
without
his
knowledge, or that he had exercised all due
diligence to prevent the commission of such
offence:

Provided further that where a
person is nominated as a Director of a
company by virtue of his holding any office
or employment in the Central Government
or State Government or a financial
corporation owned or controlled by the
Central
Government
or
the
State
Government, as the case may be, he shall
not be liable for prosecution under this
Chapter.

(2)
Notwithstanding
anything
contained in sub-section (1), where any
offence under this Act has been committed
by a company and it is proved that the
offence has been committed with the
consent or connivance of, or is attributable
to, any neglect on the part of, any director,
manager, secretary or other officer of the
company,
such
director,
manager,
secretary or other officer shall also be
deemed to be guilty of that offence and
shall be liable to be proceeded against and
punished accordingly.

Explanation.-- For the purposes
of this section, --

(a) "company" means any body
corporate and includes a firm or other
association of individuals; and

(b) "director", in relation to a
firm, means a partner in the firm."

11. From the Explanation (a) to
Section 141 N.I. Act, it is clear that for the
purpose of Section 141 N.I. Act company
means any body corporate, including a firm
and other association of individuals.
Therefore, applying the principle of maxim
ejusdem generis other association of
individuals will be interpreted as per the
meaning of firm which is formed by two or
more
persons.
The
proprietorship
concerned is always run by a person.
Therefore, that cannot be said to be a firm
or other association of individuals as
mentioned in the Explanation (a) to Section
141of N.I. Act.
8 INDIAN LAW REPORTS ALLAHABAD SERIES

12. Though as per Order XXX Rule 1
C.P.C. a suit can be filed on behalf of or
against a partnership firm of two or more
persons and the partner of that firm can
also be sued but as per Order XXX Rule 10
C.P.C. a person running a business other
than in his own name can also sue or be
sued in the name of his business or
proprietorship concern, but in case of
proprietorship concerned, it's proprietor has
no separate identity from the proprietorship
concerned
despite
the
fact
that
his
proprietorship concerned may be sued. For
reference Order XXX Rules 1 to 10 are
being quoted as under:-

"Order XXX-

1. Suing of partners in name of
firm.-(1) Any two or more persons
claiming or being liable as partners and
carrying on business in 641[India] may sue
or be sued in the name of the firm (if any)
of which such persons were partners at the
time of the accruing of the cause of action,
and any party to a suit may in such case
apply to the Court for a statement of the
names and addresses of the person who
were, at the time of the accruing of the
cause of action, partners in such firm, to be
furnished and verified in such manner as
the Court may direct.

(2) Where persons sue or are
sued as partners in the name of their firm
under sub-rule (1), it shall, in the case of
any pleading or other document required
by or under this Code to be signed, verified
or certified by the plaintiff or the
defendant, suffice if such pleading or other
document is signed, verified or certified by
any one of such persons.

2.
Disclosure
of
partners'
names.-(1) Where a suit is instituted by
partners in the name of their firm, the
plaintiff or their pleader shall, on demand
in writing by or on behalf of any defendant,
forthwith declare in writing the names and
places of residence of all the persons
constituting the firm on whose behalf the
suit is instituted.

(2) Where the plaintiff or their
pleader fails to comply with any demand
made under sub-rule (1), all proceedings in
the suit may, upon an application for that
purpose, be stayed upon such terms as the
Court may direct.

(3) Where the names of the
partners are declared in the manner
referred to in sub-rule (1), the suit shall
proceed in the same manner, and the same
consequences in all respects shall follow,
as if they had been named as plaintiffs in
the plaint:

642[Provided
that
all
proceedings shall nevertheless continue in
the name of the firm, but the name of the
partners disclosed in the manner specified
in sub-rule (1) shall be entered in the
decree.]

3. Service.-Where persons are
sued as partners in the name of their firm,
the summons shall be served either-

(a) upon any one or more of the
partners, or

(b) at the principal place at which
the partnership business is carried on
within 643[India] upon any person having,
at the time of service, the control or
management of the partnership business
there,

as the Court may direct; and such
service shall be deemed good service upon
the firm so sued, whether all or any of the
partners are within or without 644[India]:

Provided that, in the case of a
partnership which has been dissolved to the
knowledge of the plaintiff before the
institution of the suit, the summons shall be
served
upon
every
person
within
645[India] whom it is sought to make
liable.
12 All. Lalit Chaprana Vs. State of U.P. & Anr.
9

4. Right of suit on death of
partner.-(1) Notwithstanding anything
contained in Section 45 of the Indian
Contract Act, 1872 (9 of 1872), where two
or more persons may sue or be sued in the
name of a firm under the foregoing
provisions and any of such persons dies,
whether before the institution or during the
pendency of any suit, it shall not be
necessary to join the legal representative of
the deceased as a party to the suit.

(2) Nothing in sub-rule (1) shall
limit or otherwise affect any right which the
legal representative of the deceased may
have-

(a) to apply to be made a party to
the suit, or

(b) to enforce any claim against
the survivor or survivors.

5. Notice in what capacity
served.-Where a summons is issued to a
firm and is served in the manner provided
by Rule 3, every person upon whom it is
served shall be informed by notice in
writing given at the time of such service,
whether he is served as a partner or as a
person having the control or management
of the partnership business, or in both
characters, and, in default of such notice,
the person served shall be deemed to be
served as a partner.

6. Appearance of partners.-
Where persons are sued as partners in the
name of their firm, they shall appear
individually in their own names, but all
subsequent proceedings shall, nevertheless,
continue in the name of the firm.

7. No appearance except by
partners.-Where a summons is served in
the manner provided by Rule 3 upon a
person having the control or management
of the partnership business, no appearance
by him shall be necessary unless he is a
partner of the firm sued.

8. Appearance under protest.-
(1) Any person served with summons as a
partner under Rule 3 may enter an
appearance under protest, denying that he
was a partner at any material time.

(2) On such appearance being
made, either the plaintiff or the person
entering the appearance may, at any time
before the date fixed for hearing and final
disposal of the suit, apply to the Court for
determining whether that person was a
partner of the firm and liable as such.

(3) If, on such application, the
Court holds that he was a partner at the
material time, that shall not preclude the
person from filing a defence denying the
liability of the firm in respect of the claim
against the defendant.

(4) If the Court, however, holds
that such person was not a partner of the
firm and was not liable as such, that shall
not preclude the plaintiff from otherwise
serving a summons on the firm and
proceeding with the suit; but in that event,
the plaintiff shall be precluded from
alleging the liability of that person as a
partner of the firm in execution of any
decree that may be passed against the
firm.]

9. Suits between co-partners.-
This Order shall apply to suits between a
firm and one or more of the partners
therein and to suits between firms having
one or more partners in common; but no
execution shall be issued in such suits
except by leave of the Court, and, on an
application for leave to issue such
execution, all such accounts and inquiries
may be directed to be taken and made and
directions given as may be just.

10. Suit against person carrying
on business in name other than his
own.-Any person carrying on business in
a name or style other than his own name,
or Hindu undivided family carrying on
10 INDIAN LAW REPORTS ALLAHABAD SERIES
business under any name, may be sued in
such name or style as if it were a firm
name, and, insofar as the nature of such
case permits, all rules under this Order
shall apply accordingly."

13. From the perusal of the Order
XXX Rule 10, it is clear that legal fiction is
created in favour of the proprietorship
concerned of a person for suing the same as
it is a firm name, but for the purpose of
proceeding
under
the
N.I.
Act
the
proprietorship/business concern of a person
has no different identity from its proprietor
because proprietorship concerned is not the
firm which can be formed by two or more
persons.

14. The Apex Court, in paragraph
No.6 of the judgement passed in Ashok
Transport Agency (supra), observed that
partnership is governed by the Indian
Partnership Act, 1932. Though partnership
is not a juristic person like a company but
even then as per Order XXX Rule 1 of
C.P.C. partners can be sued in the name of
the firm. So far as the proprietorship is
concerned, it cannot be sued or to be sued
individually but through its proprietor or in
the name of proprietor himself. Paragraph
No.6 of the Ashok Transport Agency
(supra) is quoted as under:-

"6. A partnership firm differs
from a proprietary concern owned by an
individual. A partnership is governed by
the provisions of the Indian Partnership
Act, 1932. Though a partnership is not a
juristic person but Order XXX Rule 1 CPC
enables the partners of a partnership firm
to sue or to be sued in the name of the firm.
A proprietary concern is only the business
name in which the proprietor of the
business carries on the business. A suit by
or against a proprietary concern is by or
against the proprietor of the business. In
the event of the death of the proprietor of a
proprietary concern, it is the legal
representatives of the proprietor who alone
can sue or be sued in respect of the
dealings of the proprietary business. The
provisions of Rule 10 of Order XXX which
make applicable the provisions of Order
XXX to a proprietary concern, enable the
proprietor of a proprietary business to be
sued in the business names of his
proprietary concern. The real party who is
being sued is the proprietor of the said
business. The said provision does not have
the effect of converting the proprietary
business into a partnership firm. The
provisions of Rule 4 of Order XXX have no
application to such a suit as by virtue of
Order XXX Rule 10 the other provisions of
Order XXX are applicable to a suit against
the proprietor of proprietary business
"insofar as the nature of such case
permits". This means that only those
provisions of Order XXX can be made
applicable to proprietary concern which
can be so made applicable keeping in view
the nature of the case."

15. Above issue again came into
consideration before the Apex Court in the
case of Raghu Laxminarayanan (supra) in
which the Apex Court discussed in detail
and observed that the company being
juristic person is governed by the provision
of the Companies Act, 1956 and the
partnership is governed by the provision of
the Indian Partnership Act, 1932. It is
further mentioned in that judgement that
association of persons though is not
incorporated under the statute but it comes
within the definition of company for the
purpose of Section 141 N.I. Act. However,
the
proprietorship
concern
stands
absolutely on a different footing and,
therefore, the proprietorship will not come
12 All. Lalit Chaprana Vs. State of U.P. & Anr.
11
within the definition of Explanation (a) to
Section 141 N.I. Act. Paragraphs No. 8, 9,
12, 13, 14 of Raghu Laxminarayanan
(supra) are quoted as under:-

"8. The concept of vicarious
liability was introduced in penal statutes
like the Negotiable Instruments Act to make
the Directors, partners or other persons, in
charge of and control of the business of the
company or otherwise responsible for its
affairs; the company itself being a juristic
person.

9. The description of the accused
in the complaint petition is absolutely
vague. A juristic person can be a company
within the meaning of the provisions of the
Companies Act, 1956 or a partnership
within the meaning of the provisions of the
Partnership Act, 1932 or an association of
persons which ordinarily would mean a
body of persons which is not incorporated
under any statute. A proprietary concern,
however, stands absolutely on a different
footing. A person may carry on business in
the name of a business concern, but he
being proprietor thereof, would be solely
responsible for conduct of its affairs. A
proprietary concern is not a company.
Company in terms of the Explanation
appended to Section 141 of the Negotiable
Instruments Act, means any body corporate
and includes a firm or other association of
individuals. Director has been defined to
mean in relation to a firm, a partner in the
firm. Thus, whereas in relation to a
company, incorporated and registered
under the Companies Act, 1956 or any
other statute, a person as a Director must
come within the purview of the said
description, so far as a firm is concerned,
the same would carry the same meaning as
contained in the Partnership Act.

12. If Accused 1 was not a
company within the meaning of Section 141
of the Negotiable Instruments Act, the
question of an employee being proceeded
against in terms thereof would not arise.
The respondent was aware of the difference
between a "partnership firm" and a
"business concern" as would be evident
from the fact that it described itself as a
partnership firm and Accused 1, as a
business
concern.
Significantly,
the
respondent deliberately or otherwise did
not state as to in which capacity the
appellant had been serving the said
business
concern.
It,
as
noticed
hereinbefore, described him as in-charge,
Manager and Director of Accused 1. A
person ordinarily cannot serve both in the
capacity of a Manager and a Director of a
company.

13.
The
distinction
between
partnership firm and a proprietary concern
is well known. It is evident from Order 30
Rule 1 and Order 30 Rule 10 of the Code of
Civil Procedure. The question came up for
consideration also before this Court in
Ashok Transport Agency v. Awadhesh
Kumar [(1998) 5 SCC 567] wherein this
Court stated the law in the following terms
: (SCC pp. 569-70, para 6)

"6. A partnership firm differs
from a proprietary concern owned by an
individual. A partnership is governed by
the provisions of the Partnership Act, 1932.
Though a partnership is not a juristic
person but Order 30 Rule 1 CPC enables
the partners of a partnership firm to sue or
to be sued in the name of the firm. A
proprietary concern is only the business
name in which the proprietor of the
business carries on the business. A suit by
or against a proprietary concern is by or
against the proprietor of the business. In
the event of the death of the proprietor of a
proprietary concern, it is the legal
representatives of the proprietor who alone
can sue or be sued in respect of the
12 INDIAN LAW REPORTS ALLAHABAD SERIES
dealings of the proprietary business. The
provisions of Rule 10 of Order 30 which
make applicable the provisions of Order 30
to a proprietary concern, enable the
proprietor of a proprietary business to be
sued in the business names of his
proprietary concern. The real party who is
being sued is the proprietor of the said
business. The said provision does not have
the effect of converting the proprietary
business into a partnership firm. The
provisions of Rule 4 of Order 30 have no
application to such a suit as by virtue of
Order 30 Rule 10 the other provisions of
Order 30 are applicable to a suit against
the proprietor of proprietary business
'insofar as the nature of such case permits'.
This means that only those provisions of
Order 30 can be made applicable to
proprietary concern which can be so made
applicable keeping in view the nature of the
case."

14. We, keeping in view the
allegations made in the complaint petition,
need not dilate in regard to the definition of
a "company" or a "partnership firm" as
envisaged
under
Section
34
of
the
Companies Act, 1956 and Section 4 of the
Partnership Act, 1932 respectively, but, we
may only note that it is trite that a
proprietary concern would not answer the
description
of
either
a
company
incorporated under the Companies Act or a
firm within the meaning of the provisions of
Section 4 of the Partnership Act."

16. The above controversy was again
came into consideration before the Apex
Court in the case of Alka Khandu Avhad
(supra) in which the Apex Court, while
considering the provision of Section 141
N.I. Act, observed that Section 141 N.I.
Act is relating to the offence by the
companies
and
it
cannot
be
made
applicable
to
the
individuals
or
proprietorship firm. Paragraph No. 12 of
Alka Khandu Avhad (supra) is quoted as
under:-

"12. Section 141 of the NI Act is
relating to the offence by companies and it
cannot
be
made
applicable
to
the
individuals. The learned counsel appearing
on behalf of the original complainant has
submitted that "company" means any body
corporate and includes, a firm or other
association of individuals and therefore in
case of a joint liability of two or more
persons it will fall within "other association
of individuals" and therefore with the aid of
Section 141 of the NI Act, the appellant
who is jointly liable to pay the debt, can be
prosecuted. The aforesaid cannot be
accepted. Two private individuals cannot be
said to be "other association of individuals".
Therefore, there is no question of invoking
Section 141 of the NI Act against the
appellant, as the liability is the individual
liability (may be a joint liabilities), but cannot
be said to be the offence committed by a
company or by it corporate or firm or other
associations of individuals. The appellant
herein is neither a Director nor a partner in
any firm who has issued the cheque.
Therefore, even the appellant cannot be
convicted with the aid of Section 141 of the
NI Act. Therefore, the High Court has
committed a grave error in not quashing the
complaint against the appellant for the
offence punishable under Section 138 read
with Section 141 of the NI Act. The criminal
complaint filed against the appellant for the
offence punishable under Section 138 read
with Section 141 of the NI Act, therefore, can
be said to be abuse of process of law and
therefore the same is required to be quashed
and set aside."

17. From the perusal of the above
analysis, it is clear that proprietorship
12 All. Shyam Lal Dhadhaniya Vs. State of U.P. & Anr.
13
firm has no individual identity. It is
always associated with its proprietor and
in
case
of
proprietorship
concern,
question of vicarious liability does not
arise
and
only
proprietor
of
the
proprietorship concern will be liable,
whether
proprietorship
concern
is
arrayed as accused through it proprietor
or proprietor himself is arrayed as a
party. In both the cases there will be
individual liability of the proprietor and
proprietorship concern has no different
identity. It is used only for the business
purposes;
the
real
identity
is
its
proprietor.

18. In view of the reason mentioned in
the forgoing paragraph, it is not necessary
to implead the applicant separately as
accused.
He
can
be
prosecuted
by
impleading his firm on whose behalf the
cheque in question was issued. Therefore,
the first submission of the applicant that the
impugned proceeding is bad in the eyes of
law as he was not impleaded as party is
misconceived, hence, rejected.

19. So far as the second issue raised
by counsel for the applicant that on
bouncing of the cheque of part of liability
of Rs.4 Lakh, the applicant has filed the
complaint No. 4501 of 2021 and for
entire amount of Rs.29,50,000/-, the
impugned proceeding has been initiated
is concerned, the applicant appears to be
correct, but this ground can be raised by
the applicant before the trial court and
on that ground the present proceeding
cannot be quashed.

20. So far as the third issue raised by
the
counsel
for
the
applicant
that
admittedly the demand notice was served
upon the applicant on 9.3.2021, but the
complaint was filed on 22.3.2021 is
concerned, that appears to be correct
because for taking cognizance the
complaint should have been filed after
expiry of 15 days from the service of
demand notice. In the present case
admittedly the demand notice was
served upon the applicant on 9.3.2021.
Therefore, the complaint could have
been filed after 24.3.2021 but the
complaint was filed on 22.3.2021.
Therefore,
the
complaint
is
premature.

21. In view of the above, the present
application is partly allowed only on the
ground that the complaint is premature,
therefore, the proceeding of Complaint
Case No. 4501 of 2021 is hereby
quashed.

22. However, opposite party No.2 is
at liberty to file fresh complaint in
accordance with law.

23. With the aforesaid observation,
the application is disposed of.
---------
(2024) 12 ILRA 13
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.12.2024

BEFORE

THE HON'BLE MANISH KUMAR NIGAM, J.

Application U/S 482 No. 10823 of 2024

Shyam Lal Dhadhaniya ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Abhishek Tripathi

Counsel for the Opposite Parties:
G.A.