Heard Mr.M.Aravind Subramaniam, learned counsel for the petitioners. Though notice was served on the respondent and her name is printed in the cause list today, none appears on her behalf.
2.The first petitioner is the proprietary concern and the second petitioner is its proprietrix. The complaint under Section 138 of the Negotiable Instruments Act, 1881 has been initiated as against both the petitioners herein. It is well settled proposition of law that the person who may carry on a business in the name of the concern, he or she be the proprietor thereof, is solely responsible for its conduct and affairs.
3.Incidentally, the second petitioner herein happens to be the proprietrix of the first petitioner firm. Hence, it can only be termed as both the petitioners herein who have been arrayed as accused 1 and 2 are one and the same person. Furthermore, the proprietary firm is not legally entity for the person, the prosecution cannot be maintained against it. However, in view of the fact that the second petitioner has already been arrayed as an accused in the impugned proceedings, it would not be appropriate to continue the proceedings as against the first petitioner is concerned. Hence, the proceedings in S.T.C.No.410 of 2015 on the file of the learned Judicial Magistrate-II, Cuddalore stands quashed as against the first petitioner/firm.
4.It is made clear that the proceedings against the second petitioner/second accused shall continue. Though the learned counsel for the petitioners has raised several grounds challenging the proceedings as against the second petitioner also, I am of the view that the facts involved is a mixed question of facts which can be established during the course of trial.
5.In view of the aforesaid findings, the Criminal Original Petition stands partly allowed to the above extent. Consequently, connected Miscellaneous Petitions are closed.
13.09.2017 Index:Yes/No Internet: Yes/No nl/dp To
1.The Judicial Magistrate II, Cuddalore.
2.The Public Prosecutor, High Court, Madras.
M.S.RAMESH.J, nl/dp Crl.O.P.No.15668 of 2017 and Crl.O.P.Nos.9768 & 9769 of 2017 13.09.2017