Different Principles for Prosecuting Civil and Criminal Cases

Hon’ble Supreme Court in the case of Vishwa Mitter v. O.P. Poddar - (1983) 4 SCC 701, has, inter alia, held that “if any special statute prescribes offences and makes any special provision for taking cognizance of such offences under the statute, then the complainant requesting the Magistrate to take cognizance of the offence must satisfy the eligibility criterion prescribed by the Statute.”

Recently, hon’ble Supreme Court in Shankar Finance & Investments Vs State of Andhra Pradesh & Ors. {2008 (10) Scale 654; Cr. Appeal No. 1449 of 2003; Date of Decision: 26-Jul-2008} held as follows (in para 7):

“Section 142(a) of the Negotiable Instruments Act, 1881 requires that no Court shall take cognizance of any offence punishable under section 138 except upon a complaint made in writing by the payee. Thus the two requirements are that (a) the complaint should be made in writing (in contradistinction from an oral complaint); and (b) the complainant should be the payee (or the holder in due course, where the payee has endorsed the cheque in favour of someone else). The payee, as noticed above, is M/s Shankar Finance & Investments. Once the complaint is in the name of the `payee' and is in writing, the requirements of section 142 are fulfilled. Who should represent the payee where the payee is a company, or how the payee should be represented where payee is a sole proprietary concern, is not a matter that is governed by section 142, but by the general law.”

Further, Para 8 of the judgment is reproduced below for ready reference.

“8. As contrasted from a 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. A proprietary concern is nothing but an individual trading under a trade name. In civil law where an individual carries on business in a name or style other than his own name, he cannot sue in the trading name but must sue in his own name, though others can sue him in the trading name. Therefore, if the appellant in this case had to file a civil suit, the proper description of plaintiff should be "Atmakuri Sankara Rao carrying on business under the name and style of M/s Shankar Finance & Investments, a sole proprietary concern". But we are not dealing with a civil suit. We are dealing with a criminal complaint to which the special requirements of section 142 of the Act apply. Section 142 requires that the complainant should be payee. The payee is M/s Shankar Finance & Investments. Therefore in a criminal complaint relating to an offence under section 138 of the Act, it is permissible to lodge the complaint in the name of the proprietary concern itself.”

CONCLUSION: In view of aforesaid, following inferences may be drawn:

CIVIL LAW

 In civil law where an individual carries on business in a name or style other than his own name,

(1) he cannot sue in the trading name but must sue in his own name,

(2) though others can sue him in the trading name.

CRIMINAL COMPLAINT

(A) In a criminal complaint to which the special requirements of section 142 of the Act apply. Section 142 requires that the complainant should be payee. Therefore in a criminal complaint relating to an offence under section 138 of the Act, it is permissible to lodge the complaint in the name of:

(1) the Company;

(2) the Partnership Firm, either registered or unregistered;

(3) the Proprietary concern itself.

(B) Drawing analogy from (A) above, it would be permissible to lodge a criminal complaint (other than u/s 142 of N.I. Act) in the name of:

(1) the Company;

(2) the Partnership Firm, either registered or unregistered;

(3) the Proprietary concern itself.

(END)

Note: the views expressed are my personal and a view point only.

Author:

Narendra Sharma, Consultant (Legal)

E-mail: nkdewas@yahoo.co.in