Content Provider | Supreme Court of India |
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e-ISSN | 30484839 |
Language | English |
Access Restriction | NDLI |
Subject Keyword | 1881 - ss.138 and 142 - Complaint uls. 138 Negotiable Instruments Act |
Content Type | Text |
Resource Type | Law Judgement |
Jurisdiction | India |
Act(s) Referred | Negotiable Instruments Act, 1881 (26 of 1881) |
Case Type | Appeal |
Court | Supreme Court of India |
Disposal Nature | Appeal Dismissed |
Headnote | Negotiable Instruments Act, 1881 - ss.138 and 142 - Complaint u/s. 138 - Locus standi of the complainant - 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 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 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 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 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 thus, entitled to make the complaint - The appellant failed to 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. |
Judge | Hon'ble Dr. Justice B.S. Chauhan |
Neutral Citation | 2011 INSC 177 |
Petitioner | Milind Shripad Chandurkar |
Respondent | Kalim M. Khan & Anr. |
SCR | [2011] 3 S.C.R. 698 |
Judgement Date | 2011-03-03 |
Case Number | 643 |
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