MILIND SHRIPAD CHANDURKAR versus KALIM M. KHAN & ANR.

Citation: [2011] 3 S.C.R. 698 · Decided: 03-03-2011 · Supreme Court of India · Bench: P. SATHASIVAM · Disposal: Dismissed

Judgment (excerpt)

A 
B 
[2011] 3 S.C.R. 698 
MILIND SHRIPAD CHANDURKAR 
V. 
KALIM M. KHAN & ANR. 
(Criminal Appeal No. 643 of 2011) 
MARCH 3, 2011 
[P. SATHASIVAM AND DR. B.S. CHAUHAN, JJ.] 
Negotiable Instruments Act, 1881 - ss.138 and 142 -
Complaint uls. 138 - Locus standi of the complainant -
C Respondent no. 1 issued cheque in favour of proprietary firm 
towards discharge of a pre-existing legal liability - Cheque . 
dishonoured - Appellant claimed to be proprietor of the said 
proprietary firm - He filed complaint against respondent no. 1 
u/s. 138 - Both trial court and appellate court convicted 
D respondent no. 1 - High Court, however, set aside the 
conviction on the ground that appellant could not produce any 
evidence to establish that he was proprietor of the proprietary 
concern in question and, thus, he had no locus standi to file 
the complaint - Justification - Held: Justified - A person can 
E maintain a complaint u/s. 138, provided he is either a_ "payee· 
or "holder in due course" of the cheque - In a case of this 
nature, where the "payee" is a company or a sole proprietary 
concern, such issue cannot be adjudicated upon taking any 
guidance from s. 142 but the case shall be governed by the 
F 
general Jaw i.e. the Companies Act 1956 or by civil Jaw where 
an individual carries on business in the name or style other 
than his own name - In such a situation, he can sue in his 
own name and not in trading name, though others can sue 
him in the trading name - It is evident that the firm in question 
was the "payee" of the cheque and the appellant could not 
G claim to be the "payee", nor could he be the "holder in due 
course", unless he established that the cheques had been 
issued to him or in his favour or that he was the sole proprietor 
of the firm and being so, he could also be payee himself and 
H 
698 
MILIND SHRIPAD CHANDURKAR v. KALIM M. KHAN 699 
&ANR. 
thus, entitled to make the complaint - The appellant failed to 
A 
produce any documentary evidence to connect himself with 
the said firm, nor made any attempt to adduce any additional 
evidence at the appellate stage, in spite of the fact that the 
respondent raised this issue from the initial stage. 
The appellant claimed to be the sole proprietor of the · B 
Firm, namely, Vijaya Automobiles, which had the business 
of supplying fuel. The firm had supplied a huge quantity 
of diesel to respondent no.1. In order to meet the liability, 
respondent no.1 made payment vide Cheque in the name 
of the said proprietary Firm for an amount of Rs.7,00,000/ 
C 
-. The appellant deposited the said cheque in the bank 
account of the said Firm. The Bank returned the said 
cheque mentioning "unpaid" with a Memorandum "funds 
are insufficient". The appellant sent notice which stood 
served upon respondent no.1. The respondent no.1 
D 
neither replied to the notice, nor made payment within 15 · 
days of receipt of the notice. 
The appellant thereafter filed a complaint case before 
the Judicial Magistrate under section 138 of the 
E 
Negotiable Instruments Act, 1881. The trial Court 
convicted respondent no.1 to suffer simple imprisonment 
till rising of the court and to pay compensation of 
Rs.7,10,000/- and in default of payment thereof, to suffer 
simple imprisonment for six months. Aggrieved, 
F 
respondent no.1filed criminal appeal. The Sessions 
Judge reduced the amount of compensation from 
Rs. 7, 10,000/- to Rs. 7 ,00,0001-. Still aggrieved, respondent 
no.1 preferred Criminal Revision application. The High 
Court allowed the application on the ground that the G 
appellant could not produce any evidence to establish 
that he was the sole proprietor of the proprietary concern 
in question and, thus, he had no locus standi to file the 
COfl'lplaint. Hence, the present appeal. 
Dismissing the appeal, the Court 
H 
700 
SUPREME COURT REPORTS 
[2011] 3 S.C.R. 
A 
HELD:1.1. It is evident from the facts and 
circumstances of the case that the appellant/complainant 
could not produce any document to show that he was 
the proprietor of Vijaya Automobiles in spite of the fact 
that the issue had been agitated by the respondent no.1/ 
B accused at every stage. It is also evident from the 
documents on record that in the list of witnesses, the 
complainant had mentioned the name of his banker as a 
witness, however, the said banker was not examined. 
Significantly, the appellant did not make any attempt to 
c adduce additional evidence at the appellate stage also. 
No docume

Excerpt shown. Read the full judgment & AI analysis in Lexace.