* 1 * IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 1575 OF 2008 VinodKumar Shyamshingh Yadav ..... Petitioner. V/s. The State of Maharashtra & anr. ..... Respondents. ====== Ms.Kranti Anand, adv.for the petitioner. Mr.N.R.Bubna, adv.for respondent. Mrs.A.A.Mane, APP for State. CORAM: SMT.R.P.SONDURBALDOTA, J. DATED: 10TH FEBRUARY, 2009. P.C. : 1. Heard learned counsel for both sides. 2. By this petition filed under Section 227 of the Constitution of India and Section 482 Cr.P.C., the petitioner challenges the order dated 4th March, 2005 passed by the court of Judicial Magistrate First Class, Malegaon issuing process against the petitioner in C.C.No. 226 of 2005 filed by the respondent under Section 138 Negotiable Instruments Act. The petitioner had preferred revision application against the order being Criminal Revision Application No.51 of 2008 which came to be rejected by the order dated 16th July 2008. Respondent * 2 * no.1 filed proceedings under Section 138 Negotiable Instruments Act in respect of the two cheques which were allegedly given by the petitioner towards repayment of the hand loan alleged to have given by respondent no.1 to the petitioner. When the cheques were presented for payment, they were returned as the petitioner had stopped payment thereunder. 3. It is the contention of the petitioner, that the bag in which the cheques were kept got lost on 22nd April, 2004. He had immediately lodged complaint with Seknior Police Inspector, Andheri Police Station, Andheri (East) and also directed his bank that payment under the two cheques should be stopped, if presented for payment. Ms.Anand, the learned counsel for the petitioner submits that the petitioner had not issued the cheques towards any legal liability and there was no transaction of loan between the petitioner and respondent no.1. According to her, the cheques lost from hisw bag have been misused by respondent no.1. The learned Sessions Judge has considered this aspect of the matter and opined that this defence of the petitioner will have to be considered at the time of the trial. Ms.Kranti, the learned counsel for * 3 * the petitioner next points out that the cheques were drawn on the account held by the firm by name M/s.V.M.Constructions, a partnership firm, and the complaint filed by respondent no.1 makes no reference to M/s.V.M.Constructions. This according to her is sufficient to show that the complaint is a false complaint. Perusal of the correspondence by the petitioner to the Manager, Standard Chartered Bank dated 22nd May, 2004 shows that M/s. V.M.Constructions is a proprietary firm and not a partnership firm. There is no difference between a proprietor and the proprietary concern. Therefore, the fact that the complaint does not make reference to the proprietary concern is not sufficient to discharge the petitioner. It will be one of the circumstances forming part of defence to the trial. The learned revisional court has rightly appreciated the matter and held that all the contentions raised by the petitioner are infact his defence which can be considered at the time of trial. Hence, the order. O R D E R 4. The petition is dismissed. [JUDGE] * 4 *