Anish Kumar Gupta, J.

1. Heard Sri Ajay Kumar Pandey, learned counsel for the applicant, Sri Jai Raj, learned counsel for opposite party no.2 and Sri Pankaj Srivastava, learned A.G.A. for the State.

2. The instant application U/S 482 has been filed seeking quashing the impugned summoning order dated 05.12.2014 as well as entire proceedings of Complaint Case No.3473 of 2014 (Prasant Sharma Vs. Abhishek Jain), under Section 138 of Negotiable Instruments Act, 1881, Police Station Hariparvat, District Agra, pending in the Court of Additional Chief Judicial magistrate, Court No.VIII, Agra.

3. Learned counsel for the applicant submits that in the instant case, the complaint under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as the "N.I. Act") has been filed by the opposite party no.2, whereas he was not the payee of the said cheque, therefore, the complaint is not maintainable. Learned counsel for the applicant relying upon the provisions of Section 142 (1) (a) of the N.I. Act submits that such complaint is maintainable only on behalf of the payee or the holder in due course of the cheque. Learned counsel for the applicant submits that the opposite party no.2 herein is neither the payee nor the holder in due course of the cheque as has been defined in Section 7 and 9 of the N.I. Act, 1881.

4. Learned counsel for the opposite party no.2, on the other hand, submits that undisputedly the cheque in the instant case was issued in favour of Raj Rajeshwari Enterprises which is the proprietorship of the opposite party no.2, who has filed a complaint being the proprietorship firm. Thus, the complaint by the opposite party no.2 in his individual name is maintainable as he becomes holder in due course of the said cheque. In support of submissions made by learned counsel for the applicant he placed reliance upon the judgment dated 03.03.2011 of Apex Court in the case of Criminal Appeal No.643 of 2011 (Milind Shripad Chandurkar Vs. Kalim M. Khan & another).

5. However, learned counsel for the applicant disputes that the said Raj Rajeshwari Enterprises is not a proprietorship but a partnership firm, therefore, he submits that complaint in the individual name of one of such partnership firm is not maintainable. Learned counsel for the applicant further submits that such Raj Rajeshwari Enterprises is not a partnership firm, is not disputed by the opposite party no.2 in the counter affidavit filed by him.

6. Learned A.G.A. for the State also submits that even partner or the proprietor of a firm is holder in due course of the cheque, therefore, such complaint is maintainable in the name of a partner or a proprietor of such firm in individual capacity as well. Learned A.G.A. for the State has placed reliance on a judgment of Apex Court in Rathish Babu Unnikrishnan Vs. State (NCT of Delhi), 2022 SCC OnLine SC 513.

7. Having heard learned counsel for the parties, this Court has carefully gone through the record of this case and from perusal of the record it is found that it will be relevant to take note of Sections 7, 9, 142 (1) (a) of the N.I. Act, which reads as under:-

"Section 7 of N.I. Act, 1881 defines "payee" as the person named in the instrument, to whom or to whose order the money is by the instrument directed to be paid.

"Section 9 defines "holder in due course" as any person who for consideration became the possessor of a cheque if payable to a bearer or the payee or endorsee thereof.

Section 142 (1) (a) provides that the complaint under Section 138 N.I. Act is to be filed either by the payee of the said cheque or the holder in due course of the said cheque."

8. From the aforesaid provisions, it is crystal clear that a complaint under Section 138 of thecan be filed by the payee of the cheque or the holder in due course. The definition of holder in due course is wide enough and includes any person, who comes in possession of the said cheque for consideration.

9. In the case of Milind Shripad Chandurkar (supra), the Apex Court has held as under:-

"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 Section 142 of the Act, 1881 but the case shall be governed by the general law i.e. the Companies Act 1956 or by civil law 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. So far as Section 142 is concerned, a complaint shall be maintainable in the name of the "payee", proprietary concern itself or in the name of the proprietor of the said concern."

10. In the instant case, the opposite party no.2, claims himself to the proprietor of the firm Raj Rajeshwari Enterprises, thus in considered opinion of this Court, a proprietor of a firm is covered within the definition of holder in due course and complaint by him under Section 138/142 of N.I. Act is maintainable.

11. In Tanna and Modi vs. CIT, (2007) 7 SCC 434, [LQ/SC/2007/752] the Apex Court has held that the partnership firm is not an independent legal entity thus it is not a juristic person. Under the partnership Act, a partner of a partnership firm represents the firm itself and he has an implied authority in terms of Section 19 of the Partnership Act.

12. Similarly in C.I.T. vs. R.M. Chidambaram Pillai, (1977) 1 SCC 431, [LQ/SC/1976/439] the Apex Court has held that a partnership form is not a legal person even though it has some attributes of personality. Partnership is a certain relation between persons, with the product of agreement being, to share the profits of a business. ‘Firm’ is a collective noun, a compendious expression of designate an entity, not a person.

13. In Munshi Ram vs. Municipal Committee, (1979) 3 SCC 83, [LQ/SC/1979/175] the Apex Court has held that partnership firm is not a legal entity separate and distinct from partners and is only compendious description of individuals who compose the firm.

14. Therefore, the partners of a partnership firm are not different legal entities. They are one and the same. Therefore, even if the submission of applicants be assumed to be true that the cheque was issued in favour of the partnership firm than the partner of the said firm becomes the holder in due course of the said cheque, which is capable of maintaining a complaint against the drawer of the cheque in terms of Section 142(1) of Negotiable Instrument Act.

15. In Rathish Babu Unnikrishnan (Supra) the Apex Court considering the scope of interference while exercising jurisdiction under Section 482 Cr.P.C., in complaint case lodged under Section 138 of N.I. Act, has held as under:-

"16. The proposition of law as set out above makes it abundantly clear that the Court should be slow to grant the relief of quashing a complaint at a pre-trial stage, when the factual controversy is in the realm of possibility particularly because of the legal presumption, as in this matter. What is also of note is that the factual defence without having to adduce any evidence need to be of an unimpeachable quality, so as to altogether disprove the allegations made in the complaint.

17. The consequences of scuttling the criminal process at a pre-trial stage can be grave and irreparable. Quashing proceedings at preliminary stages will result in finality without the parties having had an opportunity to adduce evidence and the consequence then is that the proper forum i.e., the trial Court is ousted from weighing the material evidence. If this is allowed, the accused may be given an un-merited advantage in the criminal process. Also because of the legal presumption, when the cheque and the signature are not disputed by the appellant, the balance of convenience at this stage is in favour of the complainant/prosecution, as the accused will have due opportunity to adduce defence evidence during the trial, to rebut the presumption.

18. Situated thus, to non-suit the complainant, at the stage of the summoning order, when the factual controversy is yet to be canvassed and considered by the trial court will not in our opinion be judicious. Based upon a prima facie impression, an element of criminality cannot entirely be ruled out here subject to the determination by the trial Court. Therefore, when the proceedings are at a nascent stage, scuttling of the criminal process is not merited."

16. From the aforesaid observations made by the Apex Court, it is crystal clear that if the cheque is issued in the name of a firm, whether proprietorship or partnership firm, the proprietor or the partner as the case may be, becomes the holder in due course and he can sue in his own name and it is not necessary for him to sue in a trading name, though others can sue such firm in the trading name. Therefore, the instant complaint filed by the opposite party no.2, claiming himself to be a proprietor of the said firm in whose name the said cheque is issued by the applicant herein, in the considered opinion of this Court, complaint is maintainable. Even if the contention of applicant be accepted that the said Raj Rajeshwari Enterprises is a partnership and not a proprietorship firm, it will not help the applicant herein as even the partnership firm does not have a different legal identity and is not a juristic person. Therefore, a partner of the firm also becomes the holder in due course of the cheque within the meaning of Section 142 (1) of the N.I. Act. Thus, the complaint even on behalf of the partner of a firm in his own name is maintainable. Otherwise, also in the instant case, the applicant does not dispute that the cheque was issued in the name of the said Raj Rajeshwari Enterprises and the said cheque was dishonoured and demand notice was issued by the opposite party no.2, he has failed to comply with the said notice. Therefore, in view of the presumption under Section 139 of the N.I. Act and as per the law laid down by the Apex Court, this Court does not find any good ground to interfere in the instant case in exercise of jurisdiction under Section 482 Cr.P.C.

17. Accordingly, the instant application is devoid of merit and is hereby dismissed.