IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 09.07.2010 CORAM THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Crl.O.P.No.12467 of 2007 & Crl.M.P.No.1 of 2007 Nivi Knit Fashions No.31, Karuvampalayam Extn. Diamond Theatre backside Near Classic Clothing Company Tiruppur rep. By its Proprietor E.Mohanraj .. Petitioner Vs N.Rajkumar Prop: M/s.Delta Carriers rep. by its Power Agent P.Nagarajan Manager of M/s.Delta Carriers 96, V.S.S. Steet, Gandhi Nagar Udumalpet .. Respondent PRAYER: Criminal Original Petition filed under section 482 of Criminal Procedure Code praying to quash the C.C.No.218 of 2006 pending on the file of the Judicial Magistrate No.I, Udumalpet. For Petitioners: Mr.B.Nambiselvan For Respondent : No appearance ORDER There is no representation for the respondent. The submissions made by Mr.B.Nambiselvan, learned counsel for the petitioner were heard. 2.This petition has been filed invoking the inherent powers of the High Court under Section 482 Cr.P.C, seeking an order quashing the criminal proceedings initiated on the file of the learned Judicial Magistrate No.I, Udumalpet in C.C.No.218 of 2006 based on the complaint of the respondent herein preferred under Section 200 Cr.P.C alleging commission of an offence punishable https://hcservices.ecourts.gov.in/hcservices/ under section 138 of the Negotiable Instruments Act. Nivi Knit Fashions, a proprietary concern and its Proprietor E.Mohanraj are the two persons arrayed as accused in the above said case. The present petition has been filed in the name of Nivi Knit Fashions represented by its proprietor E.Mohanraj. 3.The short point that has arisen in this petition is, "whether the prosecution of a proprietary concern in its name apart form prosecuting the proprietor is maintainable?" 4.The same is a covered point. It is unnecessary to refer to all the cases in which the said question has been decided. Suffice to cite two of such judgments of this Court alone. In N.Gopalan Vs.K.Udhayakumar reported in 2009 (4) CTC 217, this Court considered the maintainability of the prosecution of a mandate holder or authorised signatory, who was not the proprietor of the proprietary concern, on whose behalf dishonoured cheque was issued. While holding that such a mandate holder or authorised signatory who had signed the cheque on behalf of the proprietary concern / proprietor would not be liable to be prosecuted for the offence punishable under Section 138 of the Negotiable Instruments Act, since the cheque was not issued on an account maintained by him with the banker, this Court, after elaborate discussion regarding the definition of Company found in Section 141 of the Negotiable Instruments Act, held that a proprietary concern was not covered by the said definition and hence a proprietary concern could not be prosecuted. Similar was the view taken by another learned Judge of this Court in S.K.Real Estates, represented by its Proprietor S.K.Krishnamoorthy & Another Vs.S.Ahmed Meeran reported in 1(2002) BC 491. In the said case, it was held that a proprietary concern was not a separate entity, nor was it a concern that is covered by the definition of Company found in Section 141 of the Negotiable Instruments Act and hence the prosecution of the proprietary concern along with the proprietor could not be maintained. However, in the said case, this Court made it clear that though the prosecution of the proprietary concern could not maintained, the prosecution of the proprietor could be maintained and could be continued. The said ratio squarely applies to the case on hand. 4.Accordingly this Court holds that the prosecution initiated against Nivi Knit Fashions, the proprietary concern shall be quashed and at the same time, the prosecution initiated against E.Mohanraj, the proprietor shall be continued. 5.In the result, this petition is allowed and the criminal proceedings initiated against the proprietary concern Nivi Knit Fashions is quashed on the ground that the prosecution of the proprietary concern could not be maintained. It is hereby https://hcservices.ecourts.gov.in/hcservices/ clarified that prosecution of the proprietor, E.Mohanraj could be maintained and could be continued. Consequently, the connected miscellaneous petition is closed. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. gpa To 1. The Judicial Magistrate No.I Udumalpet. 2. do thro the Chief Judicial Magistrate, Coimbatore 1 cc to M/s. B. Nambiselvan, Advocate, Sr. 49974 Crl.O.P.No.12467 of 2007 AKR (CO) kk 20/7 https://hcservices.ecourts.gov.in/hcservices/