Karnataka High CourtSri H.N.Nagaraj vs Smt S.Priya Soliwal on 21 September, 2022Bench: Suraj Govindaraj-1-\n                                                              CRL.P No. 8257 of 2019\n                                                          C/W CRL.P No. 8235 of 2019\n                                                              CRL.P No. 8262 of 2019\n                                                              CRL.P No. 8277 of 2019\n                                                              CRL.P No. 8279 of 2019\n\n\n\n\n                      IN THE HIGH COURT OF KARNATAKA AT BENGALURU\n\n                        DATED THIS THE 21ST DAY OF SEPTEMBER, 2022\n\n                                                 BEFORE\n                         THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ\n                             CRIMINAL PETITION NO. 8257 OF 2019\n                                                                                       ®\n                                            C/W\n                             CRIMINAL PETITION NO. 8235 OF 2019\n                             CRIMINAL PETITION NO. 8262 OF 2019\n                             CRIMINAL PETITION NO. 8277 OF 2019\n                             CRIMINAL PETITION NO. 8279 OF 2019\n\n                      IN CRL.P.NO.8257/2019\n                      BETWEEN:\n\n                      SRI. H.N. NAGARAJ\n                      S/O LATE HEGGUR NANJUNDAPPA\n                      AGED ABOUT 60 YEARS\n                      PROPRIETOR\n                      M/S VENKATESHWARA STONE CRUSHERS\n                      NO.490/2/01, 39TH CROSS\n                      8TH BLOCK, JAYANAGAR\n                      BENGALURU-560 082\n                                                                       ...PETITIONER\n                      (BY SRI. G S VENKAT SUBBA RAO, ADVOCATE)\n\n                      AND:\n\n                      SRI. SURESH LAL HIRA LAL\n                      S/O LATE HIRA LAL\n                      AGED ABOUT 69 YEARS\n                      NO.92, J.M. ROAD\n                      BANGALORE-560 001\n                                                                      ...RESPONDENT\nDigitally signed by\n                      (BY KUM. NEHA SHETTY, ADVOCATE)\nPOORNIMA\nSHIVANNA\nLocation: HIGH\nCOURT OF\nKARNATAKA\n                             -2-\n                                      CRL.P No. 8257 of 2019\n                                  C/W CRL.P No. 8235 of 2019\n                                      CRL.P No. 8262 of 2019\n                                      CRL.P No. 8277 of 2019\n                                      CRL.P No. 8279 of 2019\n\n\n\n\n      THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF\nCR.P.C., PRAYING TO CALL FOR THE RECORDS AND QUASH THE\nIMPUGNED ORDER DATED 24.07.2018 PASSED BY THE XX\nADDITIONAL CHIEF METROPOLITAN MAGISTRATE BENGALURU IN\nC.C.NO.20484/2018 BEING THE ORDER TAKING COGNIZANCE OF\nTHE OFFENCE P/U/S.138 OF NI ACT VIDE ANNEXURE-A AND ETC.\n\n                          *****\nIN CRL.P.NO.8235/2019\nBETWEEN:\n\nSRI. H.N. NAGARAJ\nS/O LATE HEGGUR NANJUNDAPPA\nAGED ABOUT 60 YEARS\nPROPRIETOR\nVENKATESHWARA STONE CRUSHERS\nNO.312, 1ST FLOOR, 1ST MAIN\n40TH CROS, 8TH BLOCK, JAYANAGAR\nBENGALURU-560 082\n                                               ...PETITIONER\n(BY SRI. G S VENKAT SUBBA RAO, ADVOCATE)\n\nAND\n\nSMT S. PRIYA SOLIWAL\nW/O SRI. RAHUL B. HINDUJA\nAGED ABOUT 34 YEARS\nNO.11/2, 5TH CROSS\nLAKSHMI ROAD, SHANTINAGAR\nBANGALORE-560 027\n                                             ... RESPONDENT\n(BY SRI. K. VENKATARAMANA, ADVOCATE)\n\n      THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF\nCR.P.C., PRAYING TO CALL FOR THE RECORDS AND QUASH THE\nIMPUGNED ORDER DATED 05.12.2018 PASSED BY THE XX\nADDITIONAL CHIEF METROPOLITAN MAGISTRATE BENGALURU IN\nC.C.NO.32057/2018 BEING THE ORDER TAKING COGNIZANCE OF\nTHE OFFENCE P/U/S.138 OF NI ACT AND ETC.\n\n                             *****\n                             -3-\n                                      CRL.P No. 8257 of 2019\n                                  C/W CRL.P No. 8235 of 2019\n                                      CRL.P No. 8262 of 2019\n                                      CRL.P No. 8277 of 2019\n                                      CRL.P No. 8279 of 2019\n\n\n\n\nIN CRL.P.NO.8262/2019\nBETWEEN:\n\nSRI. H.N. NAGARAJ\nS/O LATE HEGGUR NANJUNDAPPA\nAGED ABOUT 60 YEARS\nPROPRIETOR\nM/S VENKATESHWARA STONE CRUSHERS\nNO.490/2/01, 39TH CROSS\n8TH BLOCK, JAYANAGAR\nBENGALURU-560 082\n                                               ...PETITIONER\n(BY SRI. G S VENKAT SUBBA RAO, ADVOCATE)\n\nAND:\n\nSMT. PAYAL KISHORE KUMAR\nW/O KISHORE SURESHLAL\nAGED ABOUT 43 YEARS\nNO.17, SUBRAMANYA SWAMY TEMPLE STREET\nV V PURAM, BENGALURU-560 004\nREP. BY GPA HOLDER\nKISHORE SURESHLAL\n                                             ... RESPONDENT\n(BY KUM. NEHA SHETTY, ADVOCATE)\n\n      THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF\nCR.P.C., PRAYING TO CALL FOR THE RECORDS AND TO QUASH THE\nIMPUGNED ORDER DATED 24.07.2018 PASSED BY THE XX\nADDITIONAL CHIEF METROPOLITAN MAGISTRATE BENGALURU IN\nC.C.NO.20486/2018 BEING THE ORDER TAKING COGNIZANCE OF\nTHE OFFENCE P/U/S.138 OF NI ACT VIDE ANNEXURE-A AND ETC.\n\n                          *****\nIN CRL.P.NO.8277/2019\nBETWEEN:\n\nSRI. H.N. NAGARAJ\nS/O LATE HEGGUR NANJUNDAPPA\nAGED ABOUT 60 YEARS\n                             -4-\n                                      CRL.P No. 8257 of 2019\n                                  C/W CRL.P No. 8235 of 2019\n                                      CRL.P No. 8262 of 2019\n                                      CRL.P No. 8277 of 2019\n                                      CRL.P No. 8279 of 2019\n\n\n\n\nPROPRIETOR\nM/S VENKATESHWARA STONE CRUSHERS\nNO.490/2/01, 39TH CROSS\n8TH BLOCK, JAYANAGAR\nBENGALURU-560 082\n                                               ...PETITIONER\n(BY SRI. G S VENKAT SUBBA RAO, ADVOCATE)\n\nAND:\n\nSRI. KISHORE SURESHLAL\nS/O SURESHLAL HIRALAL\nAGED ABOUT 44 YEARS\nNO.17, SUBRAMANYA SWAMY TEMPLE STREET\nV V PURAM, BENGALURU-560 004\n                                             ... RESPONDENT\n(BY KUM. NEHA SHETTY, ADVOCATE)\n\n      THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF\nCR.P.C., PRAYING TO CALL FOR THE RECORDS AND TO QUASH THE\nIMPUGNED ORDER DATED 24.07.2018 PASSED BY THE XX A.C.M.M.,\nIN C.C.NO.20482/2018 BEING THE ORDER TAKING COGNIZANCE OF\nTHE OFFENCE P/U/S 138 OF THE N.I ACT AND ETC.\n\n                          *****\nIN CRL.P.NO.8279/2019\nBETWEEN:\n\nSRI. H.N. NAGARAJ\nS/O LATE HEGGUR NANJUNDAPPA\nAGED ABOUT 60 YEARS\nPROPRIETOR\nM/S VENKATESHWARA STONE CRUSHERS\nNO.490/2/01, 39TH CROSS\n8TH BLOCK, JAYANAGAR\nBENGALURU-560 082\n                                               ...PETITIONER\n(BY SRI. G S VENKAT SUBBA RAO, ADVOCATE)\n                                -5-\n                                           CRL.P No. 8257 of 2019\n                                       C/W CRL.P No. 8235 of 2019\n                                           CRL.P No. 8262 of 2019\n                                           CRL.P No. 8277 of 2019\n                                           CRL.P No. 8279 of 2019\n\n\n\n\nAND:\n\nSAW SHOBADEVI SURESHLAL\nW/O SRI. SURESHLAL HIRALAL\nAGED ABOUT 66 YEARS\nNO.17, SUBRAMANYA SWAMY TEMPLE STREET\nV V PURAM, BENGALURU-560 002\nREP. BY SPA HOLDER\nKISHORE SURESHLAL\n                                                   ... RESPONDENT\n(BY KUM. NEHA SHETTY, ADVOCATE)\n\n      THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF\nCR.P.C., PRAYING TO CALL FOR THE RECORDS AND TO QUASH THE\nIMPUGNED ORDER DATED 24.07.2018 PASSED BY THE XX\nADDL.C.M.M., BENGALURU IN C.C.NO.20479/2018 BEING THE\nORDER TAKING COGNIZANCE OF THE OFFENCE P/U/S 138 OF N.I.\nACT AND ETC.\n                           *****\n\n     THESE PETITIONS, COMING ON FOR ADMISSION, THIS DAY,\nTHE COURT MADE THE FOLLOWING:\n\n                            ORDER1.     The petitioner in Crl.P No.8257/2019 is before this\n\n       Court seeking for the following reliefs:\n\n          a. Call for the records in CC No.20484/2018 from the\n             court of XX Addl. Chief Metropolitan Magistrate,\n             Bengaluru;b. quash the impugned order dated 24.07.2018\n             passed by the XX Addl. Chief Metropolitan\n             Magistrate, Bengaluru in C.C.No.20484/2018\n             being the order taking cognizance of the offence\n             p/u/s 138 of Negotiable Instruments Act vide\n             Annexure-A;-6-CRL.P No. 8257 of 2019\n                                      C/W CRL.P No. 8235 of 2019\n                                          CRL.P No. 8262 of 2019\n                                          CRL.P No. 8277 of 2019\n                                          CRL.P No. 8279 of 2019\n\n\n\n\n        c. quash the complaint in C.C.No.20484/2018 filed\n           u/s 200 ofCr.P.C., for the offence p/u/s 138 ofNegotiable Instrument Acton the file of XX Addl.Chief Metropolitan Magistrate, Bengaluru vide\n           Annexure-B;d. issue such other order or directions as this Hon'ble\n           Court deems fit under the circumstances of the\n           case including costs, in the interest of justice and\n           equity.2.   The petitioner in Crl.P No.8235/2019 is before this\n\n     Court seeking for the following reliefs:\n\n        a. Call for the records in CC No.32057/2018 from the\n           court of XX Addl. Chief Metropolitan Magistrate,\n           Bengaluru;b. quash the impugned order dated 5.12.2018\n           passed by the XX Addl. Chief Metropolitan\n           Magistrate, Bengaluru in C.C.No.32057/2018\n           being the order taking cognizance of the offence\n           p/u/s 138 ofNegotiable Instruments Act;\n\n        c. quash the complaint in C.C.No.32057/2018 filed\n           u/s 200 of CR.P.C., for the offence p/u/s 138 ofNegotiable Instrument Acton the file of XX Addl.\n           Chief Metropolitan Magistrate, Bengaluru;\n\n        d. issue such other order or directions as this Hon'ble\n           Court deems fit under the circumstances of the\n           case including costs, in the interest of justice and\n           equity.3.   The petitioner in Crl.P No.8262/2019 is before this\n\n     Court seeking for the following reliefs:-7-CRL.P No. 8257 of 2019\n                                      C/W CRL.P No. 8235 of 2019\n                                          CRL.P No. 8262 of 2019\n                                          CRL.P No. 8277 of 2019\n                                          CRL.P No. 8279 of 2019\n\n\n\n\n        a. Call for the records in CC No.20486/2018 from the\n           court of XX Addl. Chief Metropolitan Magistrate,\n           Bengaluru;b. quash the impugned order dated 24.07.2018\n           passed by the XX Addl. Chief Metropolitan\n           Magistrate, Bengaluru in C.C.No.20486/2018\n           being the order taking cognizance of the offence\n           p/u/s 138 ofNegotiable Instruments Act;\n\n        c. quash the complaint in C.C.No.20486/2018 filed\n           u/s 200 of CR.P.C., for the offence p/u/s 138 ofNegotiable Instrument Acton the file of XX Addl.\n           Chief Metropolitan Magistrate, Bengaluru;\n\n        d. issue such other order or directions as this Hon'ble\n           Court deems fit under the circumstances of the\n           case including costs, in the interest of justice and\n           equity.4.   The petitioner in Crl.P No.8277/2019 is before this\n\n     Court seeking for the following reliefs:\n\n        a. Call for the records in CC No.20482/2018 from the\n           court of XX Addl. Chief Metropolitan Magistrate,\n           Bengaluru;b. quash the impugned order dated 24.07.2018\n           passed by the XX Addl. Chief Metropolitan\n           Magistrate, Bengaluru in C.C.No.20482/2018\n           being the order taking cognizance of the offence\n           p/u/s 138 ofNegotiable Instruments Act;\n\n        c. quash the complaint in C.C.No.20482/2018 filed\n           u/s 200 of CR.P.C., for the offence p/u/s 138 ofNegotiable Instrument Acton the file of XX Addl.\n           Chief Metropolitan Magistrate, Bengaluru;-8-CRL.P No. 8257 of 2019\n                                      C/W CRL.P No. 8235 of 2019\n                                          CRL.P No. 8262 of 2019\n                                          CRL.P No. 8277 of 2019\n                                          CRL.P No. 8279 of 2019\n\n\n\n\n        d. issue such other order or directions as this Hon'ble\n           Court deems fit under the circumstances of the\n           case including costs, in the interest of justice and\n           equity.5.   The petitioner in Crl.P No.8279/2019 is before this\n\n     Court seeking for the following reliefs:\n\n        a. Call for the records in CC No.20479/2018 from the\n           court of XX Addl. Chief Metropolitan Magistrate,\n           Bengaluru;b. quash the impugned order dated 24.07.2018\n           passed by the XX Addl. Chief Metropolitan\n           Magistrate, Bengaluru in C.C.No.20479/2018\n           being the order taking cognizance of the offence\n           p/u/s 138 ofNegotiable Instruments Act;\n\n        c. quash the complaint in C.C.No.20479/2018 filed\n           u/s 200 of CR.P.C., for the offence p/u/s 138 ofNegotiable Instrument Acton the file of XX Addl.\n           Chief Metropolitan Magistrate, Bengaluru;\n\n        d. issue such other order or directions as this Hon'ble\n           Court deems fit under the circumstances of the\n           case including costs, in the interest of justice and\n           equity.6.   In all the above matters, a private complaint underSection 200Cr.P.C., read withSection 138and141of Negotiable Instruments Act, 1881 (for short,\n\n     'N.I.Act') came to be filed against the petitioner-9-CRL.P No. 8257 of 2019\n                                          C/W CRL.P No. 8235 of 2019\n                                              CRL.P No. 8262 of 2019\n                                              CRL.P No. 8277 of 2019\n                                              CRL.P No. 8279 of 2019\n\n\n\n\n     herein on the allegation that the petitioner had\n\n     borrowed certain money from the complainant, which\n\n     was not repaid and the cheque which had been\n\n     issued thereto had got dishonoured with a remark\n\n     'account blocked'. It is aggrieved by the same that\n\n     the petitioner is before this Court.7.   The   submission    of    Sri.G.S.Venkat           Subba    Rao,\n\n     learned counsel for the petitioner is that:\n\n\n     7.1. The    petitioner,     though          described      as   a\n\n           proprietary   concern,          the   said    proprietary\n\n           concern has not been specifically made a party\n\n           and the petitioner has been made a party by\n\n           describing    him         as      a     proprietor        of\n\n           Venkateshwara Stone Crushers.                In essence,\n\n           the submission is that both Venkateshwara\n\n           Stone Crushers as a proprietary concern and\n\n           the petitioner H.N.Nagaraja were required to be- 10 -CRL.P No. 8257 of 2019\n                                           C/W CRL.P No. 8235 of 2019\n                                               CRL.P No. 8262 of 2019\n                                               CRL.P No. 8277 of 2019\n                                               CRL.P No. 8279 of 2019\n\n\n\n\n            arrayed as separate accused.            Non-arraying of\n\n            the     proprietary      concern    separately     as     an\n\n            accused goes to the root of the matter is\n\n            contrary toSection 141of N.I.Act and is\n\n            therefore requiring the complaint which had\n\n            been filed to be quashed.7.2. In this regard, he relies upon the decision of\n\n            the Panjab and Haryana High Court in the case\n\n            of SARDAR BUPENDER SINGH VS. M/S.GREEN\n\n            FEEDS THROUGH ITS PARTNER VIPIN KUMAR\n\n            dated 26.08.20221 more particularly Paras\n\n            12, 13 and 17 thereof, which are reproduced\n\n            hereunder for easy reference:12. Clause (a) of the explanation as occurs inSection 141of 'the Act' describes, a 'Company'\n                  to not only include any corporate body,\n                  but also makes a firm, or, other association of\n                  individuals, to become included within the\n                  realm of statutory coinage 'Company', and,\n                  besides when clause (b) thereof, when defines\n                  a 'Director', it makes the said statutory phrase,\n\n1 CRM-M-54111/2021- 11 -CRL.P No. 8257 of 2019\n                                 C/W CRL.P No. 8235 of 2019\n                                     CRL.P No. 8262 of 2019\n                                     CRL.P No. 8277 of 2019\n                                     CRL.P No. 8279 of 2019\n\n\n\n\n       to in relation to a firm, to also include a partner\n       in a firm.13. If so, when the statutory signification\n       assigned to a 'Company', does visibly cover not\n       only any corporate body, but also covers a\n       firm, or other association of individuals,\n       therefore, not only a corporate entity either\n       private, or, public limited becomes a Company',\n       for the purpose of application thereon ofSection 141of 'the Act', but also a firm, or,\n       other association of individuals, do also,\n       become covered bySection 141of 'the Act',\n       besides a partner in a firm when is given the\n       colour of a Director of a firm, also does become\n       covered for the relevant purpose.17. In consequence, there is merit in the\n       petition, and, the same is allowed, and, the\n       complaint bearing No.467 dated 30.01.2019\n       underSection   138of  the   Negotiable\n       Instruments Act, titled as 'M/s Green Feeds\n       V/s. Sardar Bhupinder Singh' (Annexure P-1),\n       as well as, the summoning order dated\n       05.08.2019 (Annexure P-2), both are quashed\n       and set aside.7.3. The   second     submission       insofar     as     Crl.P\n\n    No.8257/2019,        Crl.P    No.8235/2019,           Crl.P\n\n    No.8262/2019       and Crl.P No.8279/2019                are\n\n    concerned is that the sworn statement of the\n\n    Special    Power      Attorney       holder      of      the\n\n    complainant was recorded on which basis the- 12 -CRL.P No. 8257 of 2019\n                                               C/W CRL.P No. 8235 of 2019\n                                                   CRL.P No. 8262 of 2019\n                                                   CRL.P No. 8277 of 2019\n                                                   CRL.P No. 8279 of 2019\n\n\n\n\n               cognizance was taken and the same cannot be\n\n               so done and the same is contrary to the\n\n               decision of the Hon'ble Apex Court in the case\n\n               of       A.C.NARAYANAN              VS.      STATE          OF\n\n               MAHARASHTRA                 AND      ANOTHER2          more\n\n               particularly Paras 31 and 33 thereof which are\n\n               reproduced hereunder for easy reference:-31. In view of the discussion, we are of the\n                    opinion that the attorney holder cannot file a\n                    complaint in his own name as if he was the\n                    complainant, but he can initiate criminal\n                    proceedings on behalf of his principal. We also\n                    reiterate that where the payee is a proprietary\n                    concern, the complaint can be filed(i) by the proprietor of the proprietary concern,\n                    describing himself as the sole proprietor of the\n                    "payee";(ii) the proprietary concern, describing itself as a\n                    sole proprietary concern, represented by its sole\n                    proprietor; and(iii) the proprietor or the proprietary concern\n                    represented by the attorney holder under a\n                    power of attorney executed by the sole\n                    proprietor.33. While holding that there is no serious conflict\n                    between the decisions in MMTC (supra) and Janki2(2014) 11 SCC 790- 13 -CRL.P No. 8257 of 2019\n                          C/W CRL.P No. 8235 of 2019\n                              CRL.P No. 8262 of 2019\n                              CRL.P No. 8277 of 2019\n                              CRL.P No. 8279 of 2019\n\n\n\n\nVashdeo Bhojwani (supra), we clarify          the\nposition and answer the questions in          the\nfollowing manner:33.1 Filing of complaint petition underSection\n138of N.I Act through power of attorney is\nperfectly legal and competent.33.2 The Power of Attorney holder can depose\nand verify on oath before the Court in order to\nprove the contents of the complaint. However,\nthe power of attorney holder must have\nwitnessed the transaction as an agent of the\npayee/holder in due course or possess due\nknowledge regarding the said transactions.\n\n33.3 It is required by the complainant to make\nspecific assertion as to the knowledge of the\npower of attorney holder in the said transaction\nexplicitly in the complaint and the power of\nattorney holder who has no knowledge regarding\nthe transactions cannot be examined as a\nwitness in the case.33.4 In the light ofsection 145of N.I Act, it is\nopen to the Magistrate to rely upon the\nverification in the form of affidavit filed by the\ncomplainant in support of the complaint underSection 138of the N.I Act and the Magistrate is\nneither mandatorily obliged to call upon the\ncomplainant to remain present before the Court,\nnor to examine the complainant of his witness\nupon oath for taking the decision whether or not\nto issue process on the complaint underSection\n138of the N.I. Act.33.5 The functions under the general power of\nattorney cannot be delegated to another person\nwithout specific clause permitting the same in\nthe power of attorney. Nevertheless, the general- 14 -CRL.P No. 8257 of 2019\n                                         C/W CRL.P No. 8235 of 2019\n                                             CRL.P No. 8262 of 2019\n                                             CRL.P No. 8277 of 2019\n                                             CRL.P No. 8279 of 2019\n\n\n\n\n      power of attorney itself can be cancelled and be\n      given to another person.7.4. By     relying   upon          the     said   decision,    the\n\n    submission is that a complaint underSection\n\n    138of N.I.Act can be filed through a power of\n\n    attorney holder but the name of the complaint\n\n    has to be that of the complainant itself.\n\n\n7.5. The    power     of    attorney         holder    must    have\n\n    actually witnessed the transaction as an agent\n\n    of the payee/holder in due course or possess\n\n    due knowledge regarding the said transaction.\n\n    In the present case, the SPA holder not\n\n    possessing such knowledge could not have\n\n    been examined at the time of recording the\n\n    sworn statement.            The power of attorney not\n\n    having complied with the requirements of the\n\n    dicta     laid    down          by    the   Apex    Court    in- 15 -CRL.P No. 8257 of 2019\n                                          C/W CRL.P No. 8235 of 2019\n                                              CRL.P No. 8262 of 2019\n                                              CRL.P No. 8277 of 2019\n                                              CRL.P No. 8279 of 2019\n\n\n\n\n          A.C.Narayanan's case2, the sworn statement\n\n          recorded cannot be considered and cognizance\n\n          could not have been taken. On both the above\n\n          grounds, he submits that the above petitions\n\n          are required to be allowed and proceedings\n\n          required to be quashed.8.   Per contra, Ms.Neha Shetty, learned counsel for the\n\n     respondent would submit that:8.1.Section 141of N.I.Act would apply insofar as a\n\n          company is concerned.                The same has no\n\n          applicability   to    a       proprietary   concern.    A\n\n          proprietor and a proprietary concern are one\n\n          and the same.        There being no registration or\n\n          perpetual seal of succession insofar as the\n\n          proprietary concern is concerned, they have no\n\n          separate existence and there could not be\n\n          arrayed as two different parties.- 16 -CRL.P No. 8257 of 2019\n                                               C/W CRL.P No. 8235 of 2019\n                                                   CRL.P No. 8262 of 2019\n                                                   CRL.P No. 8277 of 2019\n                                                   CRL.P No. 8279 of 2019\n\n\n\n\n      8.2. As regards the power of attorney, she submits\n\n           that        he    has    categorically       averred   in   the\n\n           complaint when filed that he is the son and\n\n           special          power   of       attorney    holder   of   the\n\n           Proprietor and is aware of the facts of the\n\n           matter and he would be deposing to the matter.The necessary averments having been made it\n\n           is     in        compliance        with   the    decision    of\n\n           A.C.Narayanan's case2.                    On this basis, she\n\n           submits that the petition is required to be\n\n           dismissed.9.    Heard Sri.G.S.Venkat Subbarao, learned counsel for\n\n      the petitioner and Ms.Neha Shetty, learned counsel\n\n      for respondent and perused papers.10.   The points that would arise for determination by this\n\n      Court are:- 17 -CRL.P No. 8257 of 2019\n                                    C/W CRL.P No. 8235 of 2019\n                                        CRL.P No. 8262 of 2019\n                                        CRL.P No. 8277 of 2019\n                                        CRL.P No. 8279 of 20191) Whether a proprietary concern is required to\n           be arrayed as a separate party in a proceeding\n           underSection 138of N.I.Act?2) Whether the sworn statement of the Special\n           Power of Attorney holder could be recorded in\n           a proceeding underSection 138of N.I.Act?3) What order?11.   Answer to Point No.1: Whether a proprietary\n      concern is required to be arrayed as a separate\n      party in a proceeding underSection 138of N.I.Act?\n\n      11.1. The facts relating to each of the complaint,\n\n           cheque numbers, date of dishonour etc., are\n\n           not relevant for the purpose of these matters.\n\n\n      11.2. The submission of Sri.Venkat Subba Rao by\n\n           relying upon the decision in Sardar Bhupinder\n\n           Singh1 is that the proprietary concern is a\n\n           separate entity and as such, ought to have\n\n           been arrayed as a separate accused.\n\n      11.3.Section 141of Negotiable Instruments Act,\n\n           1881 reads as under:- 18 -CRL.P No. 8257 of 2019\n                       C/W CRL.P No. 8235 of 2019\n                           CRL.P No. 8262 of 2019\n                           CRL.P No. 8277 of 2019\n                           CRL.P No. 8279 of 2019141. Offences by companies. --(1) If the person committing an offence\nundersection 138is a company, every\nperson who, at the time the offence was\ncommitted, was in charge of, and was\nresponsible to the company for the conduct\nof the business of the company, as well as\nthe company, shall be deemed to be guilty of\nthe offence and shall be liable to be\nproceeded against and punished accordingly:\n\n PROVIDED that nothing contained in this\nsub-section shall render any person liable to\npunishment if he proves that the offence\nwas committed without his knowledge, or\nthat he had exercised all due diligence to\nprevent the commission of such offence:1[PROVIDED FURTHER that where a person\nis nominated as a Director of a company by\nvirtue of his holding any office or\nemployment in the Central Government or\nState Government or a financial corporation\nowned or controlled by the Central\nGovernment or the State Government, as\nthe case may be, he shall not be liable for\nprosecution under this Chapter.]\n\n(2) Notwithstanding anything contained in\nsub-section (1), where any offence under\nthis Act has been committed by a company\nand it is proved that the offence has been\ncommitted with the consent or connivance\nof, or is attributable to, any neglect on the\npart of, any director, manager, secretary or\nother officer of the company, such director,\nmanager, secretary or other officer shall also\nbe deemed to be guilty of that offence and\nshall be liable to be proceeded against and\npunished accordingly.- 19 -CRL.P No. 8257 of 2019\n                                    C/W CRL.P No. 8235 of 2019\n                                        CRL.P No. 8262 of 2019\n                                        CRL.P No. 8277 of 2019\n                                        CRL.P No. 8279 of 2019\n\n\n\n\n            Explanation.--    For   the   purposes    of   this\n            section,--(a) "company" means any body corporate\n            and includes a firm or other association of\n            individuals; and(b) "director", in relation to a firm, means a\n            partner in the firm.]\n\n\n\n11.4. The    said   provision      relates   to     offences     by\n\n     Companies.       A reading of the entire provision\n\n     does not indicate the applicability of the same\n\n     to a proprietary concern though it indicates that\n\n     it would apply to a company, firm or association\n\n     of individuals. The requirement ofSection 141of N.I.Act has arisen on account of a company\n\n     being a corporal entity, a firm being either\n\n     registered or unregistered comprising of two or\n\n     more partners and an association of individuals\n\n     also comprising of two or more individuals.\n\n     Thus, in all the three situations, there would be\n\n     more than two or more people who could be- 20 -CRL.P No. 8257 of 2019\n                               C/W CRL.P No. 8235 of 2019\n                                   CRL.P No. 8262 of 2019\n                                   CRL.P No. 8277 of 2019\n                                   CRL.P No. 8279 of 2019\n\n\n\n\n     incharge of the affairs of the business of the\n\n     company, firm or association of individuals and\n\n     it is therefore required for the complainant to\n\n     make specific allegations as regards each such\n\n     person so as to invoke the criminal process.11.5. Insofar as a proprietary concern is concerned,\n\n     as the name indicates there can only be one\n\n     proprietor and it is the said proprietor who\n\n     would   be   incharge     of   the   affairs   of   the\n\n     proprietary concern. Thus, it is not required for\n\n     any pleading to be made as regards who is the\n\n     person in charge of a proprietary concern when\n\n     there is only one proprietor.        I am unable to\n\n     agree with the decision of the Hon'ble Panjab\n\n     and Haryana High Court in the case of SARDAR\n\n     BUPENDER SINGH1 where the definition of a\n\n     company has been extended to a proprietary- 21 -CRL.P No. 8257 of 2019\n                                          C/W CRL.P No. 8235 of 2019\n                                              CRL.P No. 8262 of 2019\n                                              CRL.P No. 8277 of 2019\n                                              CRL.P No. 8279 of 2019\n\n\n\n\n           concern to contend that the proprietary concern\n\n           has a separate and independent existence. In\n\n           my considered opinion a proprietary concern\n\n           cannot    have   any         independent   or    separate\n\n           existence dehors the proprietor thereof.11.6. In view thereof, I answer point no.1 by holding\n\n           that in a proceeding underSection 138of\n\n           N.I.Act, the arraying of a proprietor as an\n\n           accused or a proprietary concern represented\n\n           by the proprietor would be sufficient compliance\n\n           with the requirements underSection 138of\n\n           N.I.Act, the proprietor and the proprietary\n\n           concerareis   not      required     to   be     separately\n\n           arrayed as a party accused.12.   Answer    to  Point No.2: Whether the sworn\n      statement of the Special Power of Attorney holder\n      could be recorded in a proceeding underSection\n      138of N.I.Act?- 22 -CRL.P No. 8257 of 2019\n                               C/W CRL.P No. 8235 of 2019\n                                   CRL.P No. 8262 of 2019\n                                   CRL.P No. 8277 of 2019\n                                   CRL.P No. 8279 of 2019\n\n\n\n\n12.1. Para 33 of the decision of the Hon'ble Apex\n\n     Court in A.C.Narayanan's2 case has been\n\n     reproduced hereinabove.12.2. In terms of Para 33.1 of A.C.Narayanan's2\n\n     case, it is clear that a complaint underSection\n\n     138of N.I.Act can be filed through a power of\n\n     attorney.   In the present case, the compliant\n\n     has been filed by a Special Power of Attorney,\n\n     which is sufficient compliance.\n\n\n12.3. In terms of para 33.2 of A.C.Narayanan's2\n\n     case, a power of attorney could depose and\n\n     verify on oath and prove the contents of the\n\n     complaint which has been done.12.4. The power of attorney holder being a witness to\n\n     the transaction as an agent is a matter which\n\n     has been averred in the complaint but the- 23 -CRL.P No. 8257 of 2019\n                              C/W CRL.P No. 8235 of 2019\n                                  CRL.P No. 8262 of 2019\n                                  CRL.P No. 8277 of 2019\n                                  CRL.P No. 8279 of 2019\n\n\n\n\n    veracity of the same would always be subject to\n\n    cross-examination in the proceedings.       In the\n\n    event of the accused being able to establish\n\n    that the power of attorney does not know the\n\n    transactions and/or that the deposition given is\n\n    not correct or false, the accused could always\n\n    succeed in the said mater. At the stage of filing\n\n    of an affidavit or recordal of sworn statement it\n\n    cannot be said or decided as to whether the\n\n    power of attorney is aware of or not of the\n\n    transactions.12.5. In terms of para 33.3 of A.C.Narayanan's2\n\n    case, what is required is for a specific assertion\n\n    to be made that the power of attorney is aware\n\n    of the transactions. In the present case, such\n\n    an assertion has been made. Be that as it may,\n\n    during the course of cross-examination if it is- 24 -CRL.P No. 8257 of 2019\n                                      C/W CRL.P No. 8235 of 2019\n                                          CRL.P No. 8262 of 2019\n                                          CRL.P No. 8277 of 2019\n                                          CRL.P No. 8279 of 2019\n\n\n\n\n           established that the power of attorney holder\n\n           has no knowledge regarding the transaction,\n\n           then the complaint itself would fail and it is the\n\n           risk which has been taken by the complainant by\n\n           appointing power of attorney holder.12.6. In view of the above, I answer Point No.2 by\n\n           holding that a power of attorney could file a\n\n           complaint, could depose to an affidavit as also\n\n           record his sworn statement in a proceedings underSection 138of N.I.Act.13.   Answer to Point No.3: What order?13.1. The two contentions which have been addressed\n\n           by Sri.Venkat Subbarao, learned counsel for the\n\n           petitioner being dealt with hereinabove, those two\n\n           grounds not being sufficient for exercise of powers\n\n           underSection 482Cr.P.C. I am of the considered\n\n           opinion that the petitions not making any grounds- 25 -CRL.P No. 8257 of 2019\n                                           C/W CRL.P No. 8235 of 2019\n                                               CRL.P No. 8262 of 2019\n                                               CRL.P No. 8277 of 2019\n                                               CRL.P No. 8279 of 2019\n\n\n\n\n                are required to be dismissed and as such Criminal\n\n                Petitions are dismissed.Sd/-JUDGE\n\n\n\nPRSList No.: 1 Sl No.: 53