This order shall dispose of 17 petitions tabulated below, as issue involved in all these petitions, is the same:-

2. The issue involved in the above petitions is as under:

3. At the same time, this order also proposes to dispose of following 6 connected petitions.

Sr. N: Petition Nos. Off shoot of Criminal Complaint CRR No. N:

4.1 M/s Advance Technological Products, a proprietorship firm dealing in the business of imports and distribution of electronic components, filed the complaint (Annexure P3) through its proprietor Kapil Garg, seeking prosecution of following accused -

1. M/s Delta Electronics, proprietorship firm through its proprietor - Kapil Gupta.

2. Kapil Gupta (proprietor of accused N: 1 firm)

3. Kanik Gupta (the authorised signatory of the proprietor of the firm) 4.2 It was alleged that complainant firm had supplied electronic components to the accused-firm pursuant to their orders received from time to time. Against the total liability of ₹1,43,68,005/-, the accused issued four cheques, which on presentation by the complainant to his Banker for encashment, were dishonoured by way of different return memos with remarks "payments stopped by drawer". Complainant issued statutory legal notice to the accused, calling upon them to make payment of the cheques amount within 15 days of the receipt of the notice. Accused failed to so, compelling the complainant to file the complaint before the Court of jurisdictional Magistrate.

4.3 After taking preliminary evidence, ld. JMIC, Faridabad issued process against the accused vide order dated 04.07.2018 (Annexure P4) summoning them to face prosecution under Section 138 of the NI Act.

5. Revision under Section 397 CrPC (Annexure P5), against the above said summoning order, was filed only by accused - Kapil Gupta i.e. proprietor of the accused firm, contending that being not a signatory to the cheque, he was not liable to be prosecuted. It was further pleaded that Page 3 of 23 3 of 23 ::: Downloaded on - 20-07-2024 20:19:47 ::: Neutral Citation No:=2024:PHHC:081655 CRM-M-50733-2019 2024:PHHC:081655 Section 141 of the NI Act bars the principle of vicarious liability upon proprietorship concern and its proprietor. Said contention of the accused- Kapil Gupta i.e. sole proprietor of the accused-firm was accepted by the Revisional Court of ld. Additional Sessions Judge, Faridabad, who by way of impugned order dated 04.10.2019 (Annexure P6) set aside the summoning order dated 04.07.2018 not only qua the revisionist-accused Kapil Gupta, but also against the accused-proprietorship firm.

6. Assailing the aforesaid order, present petition has been filed by the complainant. Similar orders have been passed in other 16 cases, which have been assailed by way of separate petitions.

7. I have considered submissions of both the sides and have appraised the record.

8. Apart from raising other contentions, as shall be discussed in later part of this order, Learned counsel for the petitioner (complainant before trial court) contends that the Revisional Court has failed to appreciate that all the three accused persons, i.e. the sole proprietorship firm, its sole proprietor, and the authorised signatory, who signed the cheques in question for and on behalf of the sole proprietorship firm, all stand in the shoes of a payer and are, thus principally liable for the offence punishable under Section 138 of the NI Act, without there being any need to take the aid of Section 141 creating statutory fiction of vicarious liability that it seeks to create. It is contended that the mandate giver, the proprietor of the firm, cannot shrug off the liability under the Act by harping on the fact that he is not the signatory of the cheque. Reliance has been placed upon the decisions of Madras High Court in G. Rukkumani Vs. K. Rajendran , 2001 Criminal Law Journal 3120 & Ravi Chandran Vs. Subramanian IV (2006) BC 54 Page 4 of 23 4 of 23 ::: Downloaded on - 20-07-2024 20:19:47 ::: Neutral Citation No:=2024:PHHC:081655 CRM-M-50733-2019 2024:PHHC:081655 and also that of the Calcutta High Court in Sova Mukherjee Vs. Rajiv Mehra , (1997) 2 Current Criminal Reports 313 to bring home his point.

9. On the other hand, learned counsel for the accused - sole proprietor of the concern (respondent herein), has defended the impugned order passed by the Revisional Court, by contending that as Section 138 of the NI Act is a penal provision, strict interpretation is required to be given and that to constitute an offence under Section 138 of the NI Act, it is necessary that cheque in question must be drawn by the person, who holds the account. It is contended that in the present case, the respondent-accused, who is the proprietor of the concern, has not signed the cheque. Meaning thereby, he is not the maker of the cheque and as such, he cannot be held liable for dishonor of such cheque, which has been signed by another person, who may be the attorney holder of the respondent. To support this contention, Ld. Counsel relies on B.S. Bhasi Vs. K.M. Purushotam Dass, Crl.MC N : 6719 of 2014 decided on 26th September, 2017, [Division Bench of Kerala High Court]; and Krishna Trading Company vs. State of Gujarat, Law Finder Doc Id # 864765, [Gujarat High Court]. Learned counsel contends further that Section 141 of the NI Act has no applicability to the present case, as was contended by counsel for the petitioner- complainant before the Revisional Court, though this contention has not been raised by him before this Court.

10. Before proceeding further, let us have a look at Section 138 of the N.I.Act, which reads as under:

Explanation.--For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability."

11. Section 138 of the N.I.Act was enacted with the main objective to ensure the credibility and reliability of financial instruments, particularly cheques. The said section aims to enforce financial discipline by penalizing the dishonour of cheques so as to promote trust and reliability in the use of cheques as a negotiable instrument. The provision serves as a deterrent against the issuance of cheques without sufficient funds, thereby reducing instances of fraud and enhancing the overall integrity of financial transactions. By penalizing the dishonour of cheques, the section helps in maintaining the smooth functioning of business transactions, which often rely heavily on cheques for payments. Section 138 imposes criminal liability on the drawer of the dishonoured cheque, which can result in imprisonment and/or fines. This emphasizes the seriousness of issuing a cheque without ensuring adequate funds.

12. In Jugesh Sehgal vs Shamsher Singh Gogi , 2009 (14) SCC 683, Hon'ble Supreme Court observed that:

After quoting Section 138 of the Act, it was held as under:

10. Being cumulative, it is only when all the afore-mentioned ingredients are satisfied that the person who had drawn the cheque can be deemed to have committed an offence under Section 138 of the Act.

13. In the present cases, the court is confronted with a situation, when cheques have not been issued by any individual, and rather, the same have been issued/signed by the authorised signatories for and on behalf of Page 7 of 23 7 of 23 ::: Downloaded on - 20-07-2024 20:19:47 ::: Neutral Citation No:=2024:PHHC:081655 CRM-M-50733-2019 2024:PHHC:081655 the proprietorship concern; and not by the sole proprietor himself in his individual capacity or as proprietor of the proprietorship concern.

14. As contrasted from the Company incorporated under the Companies Act, 1956 , which is a legal entity distinct from its shareholders, a proprietary concern is not a legal entity distinct from its proprietor. In Ashok Transport Agency vs Awadhesh Kumar AIR 1999 SC 1484, explaining the distinction between partnership firm and a proprietary concern, it was held by Hon'ble Apex Court that:

15. Thus, a proprietary concern is nothing but an individual trading under a trade name. A person may carry on the business in the name of a business concern but he being the proprietor thereof, would be solely responsible for the conduct of its affairs.

16. Moving ahead, as a general rule, in cases involving criminal liability, there cannot be any vicarious liability. Meaning thereby, no one can be held criminally liable for an act of another. This normal rule is however subject to exceptions on account of specific provisions being made in the Statutes extending liability to others.

17. Section 141 of the Negotiable Instruments Act is one of such exceptions, which reads as under:

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

[underlined portion emphasized by this court]

18. The plain reading of above quoted provision itself spells out that Section 141 of the NI Act is applicable only if person committing offence under Section 138 of the NI Act is a Company or the partnership firm or association of individuals. It has no applicability to cases relating to dishonor of cheques issued by the proprietor of the proprietorship concern.

As will be evident, by a deeming provision contained in Section 141 , every person who at the time of the offence was In-charge of or was responsible for the conduct of the business of the Company or body corporate, can be held vicariously liable and guilty for an offence under Section 138 of the NI Act and punished accordingly. The criminal liability on account of dishonor of a cheque primarily falls on the drawer Company and is extended to its Officers. At the same time, it is important to notice that Section 141 contains certain conditions, which have to be satisfied before the liability can be extended to Officers of a Company, even though they are not signatory to the cheque. Since the provision creates criminal liability, obviously, the conditions have to be strictly complied with. The conditions are intended to ensure that a person, who is sought to be made vicariously liable for an offence, of which the principal accused is the Company, had a role to play in relation to the incriminating act and further that such a person should know what is attributed to him to make him liable. These principles have been reiterated by Hon'ble Supreme Court time and again in different cases. Reference can be made to Aneeta Hada Vs. Godfather Travels and Tours Private Limited , (2012) 5 SCC 661.

19. In fact, Section 141 of the NI Act pertains to the statutory fiction of vicarious liability, which has no applicability to individuals or the sole proprietorship firm. A bare perusal of Section 138 would reveal that it covers persons or entities by whom and on whose accounts, the cheque in question had been issued. On the other hand, Section 141 of the NI Act seeks to include certain persons, even though the cheques in question may not have been issued by them nor may have been drawn on their account.

20. In Manisha Koushik Bhowmik Vs. Carol Petroleum Private Limited, Law Finder Doc Id# 759796, it has been held by Bombay High Page 10 of 23 10 of 23 ::: Downloaded on - 20-07-2024 20:19:47 ::: Neutral Citation No:=2024:PHHC:081655 CRM-M-50733-2019 2024:PHHC:081655 Court, as under:-

21. A conjoint reading of Section 138 and 141 of the NI Act would reveal that it categorizes persons into the following categories:-

22. Section 141 pertains only to the persons enumerated at Sr. No.3 above i.e. someone, who may not be a signatory or issuer of the cheque nor has the cheque been drawn on his account. It is for such a person, who when associated with the Company as a Director or In charge or with a partnership firm as a partner or member of association of individuals that the Section Page 11 of 23 11 of 23 ::: Downloaded on - 20-07-2024 20:19:47 ::: Neutral Citation No:=2024:PHHC:081655 CRM-M-50733-2019 2024:PHHC:081655 141 creates a statutory fiction of vicarious liability, by virtue of which, in certain circumstances, he can be held liable for the offence punishable under Section 138 of the NI Act, even though he may not have signed or issued the cheque nor was the cheque drawn on his account. However, as far as the persons or entities mentioned at Sr. No.1 and 2 above are concerned, all such persons are the payers. Therefore, in the case of such payers, question of any statutory fiction or vicarious liability does not even arise, as they would be principally liable on their own accord, for the issuance of the cheque which stands dishonored.

23. In the present cases, as rightly contended by learned counsel for the complainant (petitioner herein), a sole proprietorship firm or its sole proprietor, cannot evade the liability under Section 138 of the NI Act by taking refuge of the fact that cheques in question were signed by the authorised signatory i.e. the third party, as notwithstanding the fact that signatory of the cheque is the authorised signatory, the cheque still remain to have been issued by and drawn on account of the sole proprietorship firm. Meaning thereby, the promise to pay, inherent in the issuance of a cheque, will still be considered to have been made by the sole proprietorship firm. As per Section 138 of the NI Act, cheque is required to be drawn on behalf of the accused person and on an account maintained by him, which in present cases is proprietorship concern. Since the cheques in question in the present cases have been issued on the account maintained by the proprietorship firm and the proprietorship firm does not have a separate and distinct identity from its proprietor, therefore, the proprietor shall remain responsible for dishonor of the cheque, even if the cheque has been signed by the person authorised by the proprietor.

24. It is important to keep in mind that an authorised signatory is an Page 12 of 23 12 of 23 ::: Downloaded on - 20-07-2024 20:19:47 ::: Neutral Citation No:=2024:PHHC:081655 CRM-M-50733-2019 2024:PHHC:081655 agent of its principal and the very nature of his engagement & authorization is such that every act of such an agent shall be deemed to be an act done by the principal himself. In this case also, the cheques have been signed by the authorised signatory for and on behalf of the sole proprietor and have been drawn on the bank account of the firm. Further, the cheques were issued in discharge of a liability incurred by the sole proprietorship firm on its account for having received the goods supplied by the petitioner- complainant.

25. At this juncture, let us also examine the relevant provisions of THE POWERS-OF-ATTORNEY ACT, 1882. Section 1A of the Act provides that "Power-of-Attorney" includes any instrument empowering a specified person to act for and in the name of the person executing it. Section 2 and 3 of the Act are quite important. These read as under:

26. When above provisions are considered conjointly, it becomes quite clear that an act committed by the holder of the power of attorney would be presumed to be an act committed by the person, who gives the power of attorney. In case, the power of attorney holder, issues an instrument Page 13 of 23 13 of 23 ::: Downloaded on - 20-07-2024 20:19:47 ::: Neutral Citation No:=2024:PHHC:081655 CRM-M-50733-2019 2024:PHHC:081655 or does an act in good faith, on the strength of power of attorney, he shall not be liable for any of these acts done by him, if before that, the donor of the power of attorney had died or had become of unsound mind, or insolvent, or had revoked the power of attorney, if the fact of death, unsoundness of mind, insolvency or revocation was not known to the person doing the act. Had the mandate/power of attorney holder not been the agent of the principal, acting on his behalf, he would have been independently liable for any act done by him, even if the donor of the power of attorney had died or had become of unsound mind, or insolvent, or had revoked the power.

27. In Hari Chand Dewan vs State Of Haryana 2002 (2) RCR (Civil) 637, a somewhat similar situation arose before this court. In that case, petitioner No. 1 had appointed petitioner No. 2 as his general attorney. On the instructions of petitioner No. 1, petitioner No. 2 had sold the land to others in violation of the provisions of Haryana Development and Regulation of Urban Areas Act, 1975 . District Town Planner, Faridabad, lodged the FIR without obtaining necessary sanction, as required under Section 11 of the Act, against both of them. Petition under Section 482 Cr. P.C. was filed by the accused-petitioners, seeking the quashing of the FIR registered under Section 7 / 10 of the Haryana Development and Regulation of Urban Areas Act, 1975, contending that no offence had been committed by the petitioners, inasmuch as petitioner N: 1 had not executed the sale deed; whereas, petitioner No. 2 had sold the land only under the instructions of petitioner No. 1, being his attorney and so, he had not committed any offence. In these facts and circumstances, it was held by this court as under:

28. In another case titled Shri Krishan Vs. State of Haryana , 1995(2) RCR (Criminal) 543, the petitioner was the son of the original owner and holding Power of Attorney on behalf of the owner. In that capacity, he executed various sale deeds in contravention of Section 10 of the Haryana Development and Regulation of Urban Areas Act, 1975 (for short, `the 1975 Act'). FIR was lodged against him. It was held by this Court that criminal liability cannot be fastened upon the petitioner and if at all, his father, i.e. the owner could be prosecuted, as it is his wishes, which were translated by him for selling the plots being the attorney only. This Court further held that attorney acts only at the behest and instance of the owner. It is his wishes, which he translates on the basis of attorney executed in his favour and it is the owner selling the land, who can possibly be prosecuted and convicted under the provisions of Section 10 of the 1975 Act.

29. Same view was taken by this court in Inderawati vs. State of Haryana, Law Finder Doc Id # 71862, by holding as follows:

30. Applying the same analogy, this court is of the view that in case Page 15 of 23 15 of 23 ::: Downloaded on - 20-07-2024 20:19:47 ::: Neutral Citation No:=2024:PHHC:081655 CRM-M-50733-2019 2024:PHHC:081655 of dishonour of a cheque, drawn on an account of sole proprietorship firm, though signed by authorised signatory of the sole proprietor, the said proprietor cannot escape from the criminal liability under Section 138 of the NI Act. Any other interpretation would lead to anomaly and absurdity, in as much as, the Principal, (i) who has undertaken the debt in question; (ii) in whose name the cheque is issued in discharge of its liability; (iii) on whose account the cheque has been drawn; and (iv) who has, ostensibly, issued the 'stop payment' instructions to its banker/concerned bank, is permitted to go Scot free, merely by virtue of the fact that it had, instead, authorised a third party to sign the cheques in question on its behalf.

31. Apart from this court, some other High Courts have taken similar view. Madras High Court dealt with a case titled G. Rukkumani vs K. Rajendran , 2001 CRI.LJ 3120, wherein the petitioner was the proprietrix of the 'Sri Lakshmi Agencies' and the second accused was her son. It was not in dispute that her son was the mandate-holder and the authorized signatory, who had issued the cheque on an account maintained by the proprietorship firm. It was observed as under:

It is evident that the second accused, namely, the son of the petitioner has been given authority, a mandate, to sign on behalf of the petitioner. In other words, the petitioner is the principal and her son is the agent.

5. The learned Counsel for the petitioner submitted that the petitioner who is not the drawer of the cheque would not come within the purview of Section 138 of the Negotiable Instruments Act, because it would apply only to a drawer. In support of such contention, the learned Counsel has cited the decision rendered by Sudesh Kumar Sharma v. K.S. Selvamani , 1994-1 Mad LW (Cri) 337. That was a case where a complaint was preferred against the father and son alleging that the father was the proprietor of the concern and the son was an authorized signatory, that the cheque was drawn by the son and it was dishonoured. When a question arose whether the father is criminally liable, the noble Judge held that the drawer of the cheque was the second accused-son and the first accused-father was the proprietor of the concern for whose liability, his son the second accused has issued the cheque and so, criminal liability cannot be fastened on the first accused. The learned Judge had observed: "so I am clear of the view that the first accused cannot be made liable for an offence under Section 138 of the Negotiable Instruments Act". The learned Judge did not go into the question whether an agent can bind the principal i.e. whether an authorized signatory can bind the mandate- giver.

6. The learned Counsel for the respondent cited a decision rendered by the Calcutta High Court in Sova Mukherjee v. Rajiv Mehra, II (1997) CCR 313. That was a decision rendered on identical facts. In that case, the learned Judge pointed out that when a general power is given, it applies to everything in which the grantor is interested, that but when a special power is given, it applies to specific matter, such as the power to sign cheques, to make transfers, to receive money, to present documents for registration, etc. Under such circumstances, the mandate-giver cannot shrug off the claim of demand of the opposite party under the pretence that he or she owes no liability under the Negotiable Instruments Act , when the cheque was issued to discharge the partial liability. The learned Judge has pointed out that a principal is always bound by the act of his or her attorney so long as the attorney does not exceed his right. The view of the learned Judge, is that the principal cannot plead that she will be only bearing the fruit, but not the burden of the act of her agent.

7. Offence under Section 138 of the Negotiable Instruments Act is a statutory offence. Section 138 of the Negotiable Instruments Act excludes mens rea, by creating strict liability. It does not say that there should be a direct nexus between the person who commits the act and the offence. But, from the words, 'such person shall be deemed to have committed an offence' giving room for a deeming provision would show that not only the principal or direct offender, an indirect offender who has allowed room for perpetuation of the offence, is also liable. Section 140 of the Negotiable Instruments Act in clear terms excludes the defence that the drawer had no reason to believe when he issued a cheque that it may be Page 17 of 23 17 of 23 ::: Downloaded on - 20-07-2024 20:19:47 ::: Neutral Citation No:=2024:PHHC:081655 CRM-M-50733-2019 2024:PHHC:081655 dishonoured on presentment for the reasons stated in Section 138 of the Negotiable Instruments Act. The exclusion of mens rea as a necessary ingredient of an offence under Section 138 of the Negotiable Instruments Act is very explicit. Therefore, when the petitioner herein had permitted the second accused to act as an authorized signatory, she is bound by the act and as such she is also liable. In the decision, Sudesh Kumar Sharma and Anr. v. K.S. Selvamani , etc. cited supra, Pratap Singh, J. appears to be of the view that offence under Section 138 of the Negotiable Instruments Act requires essential ingredient of mens rea and, therefore, the proprietor who was not the drawer was not liable. When it is made clear that the petitioner had given mandate to her son to sign cheques, she is bound by the acts committed by the mandate-holder and, therefore, she is also liable. In my considered opinion,, the view expressed by the Calcutta High Court in Sova Mukherjee v. Rajiv Mehra , cited supra is more acceptable than the views expressed by Pratap Singh. J. in Sudesh Kumar Sharma and Another v. K.S. Selvamani , etc."

32. Similarly, in Ravi Chandran Vs. Subramanian (supra), it was held by the Madras High Court that the sole proprietor/ sole proprietary concern being the mandate giver and the authorised signatory/ Power of Attorney Holder being the mandate holder, the liability in such cases for the offence under Section 138 of the NI Act could only be attributed to the mandate giver, who is the principal and not the mandate holder, who is only an authorised signatory/ Power of Attorney Holder. While holding so, it was observed that:

In this context, we have to further see, who is the mandate holder, what is his duty.

10. "Mandate" means in the commercial circle as per the law lexicon:

11. In view of the specific provisions available under Section 135 of the Act, the mandate holder is not the drawer in the real sense, as it should be understood for the purpose of Section 138 of the Act and it is also an admitted position, that the mandate holder is not the account holder, though he is the authorized signatory on behalf of the account holder.'

33. Similar view was taken by Calcutta High Court in Smt. Sova Mukherjee vs Rajiv Mehra , 1998(2) ALD(CRI) 171, as also relied by the Madras High Court in G. Rukkumani vs K. Rajendran (supra); by Karnataka High Court in Mohammad Samdani Basha vs. Syed Issac Basha reported in 2006 Criminal Law Journal 1586;

34. However, in B.S. Bhasi Vs. K.M. Purushotam Dass , (supra) Division Bench of Kerala High Court; and Krishna Trading Company vs. State of Gujarat (supra), Gujarat High Court, have taken the contrary view. 34.1 In B.S. Bhasi Vs. K.M. Purushotam Dass , the petitioner was proprietor of a proprietorship concern, who had given franchises of his proprietary concern to different persons in different areas and the franchises were authorised to function independently. The petitioner had only Page 19 of 23 19 of 23 ::: Downloaded on - 20-07-2024 20:19:47 ::: Neutral Citation No:=2024:PHHC:081655 CRM-M-50733-2019 2024:PHHC:081655 authorised them to use the label, logo and name of the proprietorship firm. The said franchises in their individual capacity had signed and issued the cheques to respective complainants.

34.2 It was in the above background facts that it was held that prosecution proceedings against petitioner are nothing but an abuse of the process, as the very basic ingredient of the offence that the cheque has to be drawn on account maintained by the person issuing the cheque has not been satisfied.

34.3 As is apparent, facts in B.S. Bhasi 's case (supra), are quite distinguishable from the facts of present case. The sole proprietor of the proprietorship concern , in that case , had authorised franchises to function independently. Authorization was to use the label, logo and name of the proprietorship firm and then the franchises in their individual capacity had signed and issued the cheques to complainants. On the other hand, in the present cases, the mandate holder, i.e., power of attorney holder of the sole proprietor was not functioning independently and rather, he issued the cheques as an agent of the sole proprietor on the strength of power of attorney held by him. As such, no advantage can be given to the respondent - sole proprietor, of the view taken in the cited authority.

35. In Krishna Trading Company's case (supra), Gujarat High Court, taking the contrary view, has held that in absence of enabling provision, a person issuing the power of attorney but not issuing/signing the cheque cannot be held constructively liable for the offence under Section 138 of the NI Act.

36.1 Apart from above, Ld. Counsel for the respondent has also referred to Aparna A. Shah vs M/s Sheth Developers P. Ltd. & Anr (AIR 2013 SC 3210), wherein the Apex Court was interpreting the provisions of Page 20 of 23 20 of 23 ::: Downloaded on - 20-07-2024 20:19:47 ::: Neutral Citation No:=2024:PHHC:081655 CRM-M-50733-2019 2024:PHHC:081655 Section 138 of the Negotiable Instruments Act in a case, where husband had drawn the cheque on an account jointly maintained with his wife. It was held that under the Act, prosecution can be sustained only against the drawer. It was further held that in case of a issuance of a cheque from joint account, a joint account holder cannot be prosecuted unless the cheque has been signed by him or her, though he was a joint account holder. After referring to Section 138 of NI Act and the necessary ingredients to constitute the said offence, as set out by the Apex Court in Jugesh Sehgal (supra), Hon'ble Supreme Court held as under:

It was concluded as under:

36.2 The facts in Aparna A. Shah's case (supra), are quite distinguishable from the facts of present case, as in that case, the husband was not acting as agent of the wife, when he issued the cheque from their joint account. Both of them were the account holder having independent power to issue & sign the cheque without the authority of each other;

whereas, in the present case, it is only the proprietorship concern represented by its sole proprietor (respondent herein), who is holding and maintaining the account in his name and the mandate holder has issued the cheques as agent of the principal.

37. In view of the entire discussion as above, this court adopts the view taken by Madras High Court in G. Rukkumani Vs. K. Rajendran ( supra), and Ravi Chandran Vs. Subramanian (supra); by the Calcutta High Court in Sova Mukherjee Vs. Rajiv Mehra (supra), and also by Karnataka High Court in Mohammad Samdani Basha vs. Syed Issac Basha (supra), so as to hold that a sole proprietorship firm or its sole proprietor, cannot evade the liability under Section 138 of the NI Act by taking refuge under the fact that cheques in question were signed by the authorised signatory, because notwithstanding the fact that signatory of the cheque is the authorised signatory, the cheque still remains to have been issued by and drawn on account of the sole proprietorship firm and the promise to pay, inherent in the issuance of a cheque, is still to be considered to have been made by the sole proprietorship firm. This court, respectfully, disagrees with the view taken by Kerala High Court in B.S. Bhasi Vs. K.M. Purushotam Dass (supra); and by Gujarat High Court in Krishna Trading Company vs. State of Gujarat (supra).

38. Learned counsel for the petitioner - complainant has rightly pointed out towards another patent illegality committed by the Revisional Court, inasmuch as it has granted the relief to an accused- entity which was not even a party before it in the revisional proceedings. In the criminal revision petition filed before the Revisional Court, it is only the present respondent- accused Mr. Kapil Gupta, i.e. the sole proprietor of the firm, Page 22 of 23 22 of 23 ::: Downloaded on - 20-07-2024 20:19:47 ::: Neutral Citation No:=2024:PHHC:081655 CRM-M-50733-2019 2024:PHHC:081655 who had preferred to challenge the summoning order. However, while passing the impugned order, the Revisional Court set aside the summoning order not only qua the said sole proprietor but also the sole proprietorship firm, which was a separate accused in the complaint in question. It was despite the fact that the cheque in question was drawn on the bank account of the said proprietorship concern.

39. Consequently, the impugned orders passed by the revisional court, exonerating the sole proprietor and the proprietorship firm, cannot be sustained and so, same are hereby set aside. All these 17 petitions, as tabulated in opening Para of this order, are hereby allowed. With the disposal of these 17 petitions, other 6 petitions, as referred in table at para N:

40. Both parties are directed to appear before the trial court on 15th July, 2024 for further proceedings.

Pending application(s), if any, also stand disposed of. A photocopy of this order be placed on the file of other connected case.