1. The present Criminal Misc.Application u/s.482 of the Code of Criminal Procedure has been preferred by the applicant herein – original accused to quash and set aside the impugned complaint being Criminal Case No.779 of 2007 pending in the Court of learned Judicial Magistrate, First Class, Radhanpur for the offence punishable u/s.138 of the Negotiable Instruments Act,1881.
2. Respondent No.1 herein – original complainant has filed the impugned complaint against the applicant herein for the offence punishable u/s.138 of the Negotiable Instruments Act in the Court of learned Judicial Magistrate, First Class, Radhanpur for dishonour of cheque dated 19/07/2007. In the said complaint, the learned Magistrate has directed to issue summons against the applicant herein for the offence punishable u/s.138 of the Negotiable Instruments Act. Hence, being aggrieved by and dissatisfied with the impugned complaint as well as the order passed by learned Magistrate directing to issue summons against the applicant herein for the offence punishable u/s.138 of the Negotiable Instruments Act, the applicant herein – original accused has preferred the present application u/s.482 of the Code of Criminal Procedure.
3. Mr.B.R.Gupta, learned advocate appearing on behalf of the applicant has vehemently submitted that as such the applicant has not committed any offence as alleged. It is further submitted that as such cheque in question was lost by the applicant in the year 1998 and it was also reported to the said Bank in the year 1998 and again in the year 2000. It is submitted that even the public notice was also given with respect to lost cheque in the year 2000. It is submitted that original complainant has misused the said cheque, which has been lost and, therefore, it cannot be said that the applicant has committed any offence as alleged. In support of his above submission, Mr.Gupta, learned advocate appearing on behalf of the applicant has relied upon the decision of the Hon'ble Supreme Court in the case of Raj Kumar Khurana V/s. State of (NCT of Delhi) and another reported in (2009)6 SCC 72 by submitting that in case of lost cheque, there cannot be any offence u/s.138 of the Negotiable Instruments Act. It is further submitted by Mr.Gupta, learned advocate appearing on behalf of the applicant that even otherwise cheque in question has been drawn by one Fascinating Leasing and Finance Private Limited and the applicant is alleged to have signed the said cheque as Director of the said Company. It is submitted that no statutory notice has been served upon the said company and, therefore, in absence of any statutory notice to the company, who can be said to be drawer of the said cheque and arraigned as an accused, the complaint against the applicant as Director of the Company cannot be maintainable. In support of his above submission, Mr.Gupta, learned advocate appearing on behalf of the applicant has relied upon the decision rendered by Hon'ble High Court of Himachal Pradesh in the case of Amit J. Bhalla V/s. Rajneesh Aggarwal reported in 99 Company Cases 130. He has also relied upon the decision of the Hon'ble Supreme Court in the case of Aneeta Hada V/s. Godfather Travels and Tours Private Limited reported in (2008)13 SCC 703 and has submitted that whether in absence of any notice to the company, who has issued the cheque and arraigned as an accused, complaint only against the applicant lodged as Director of the Company, would be maintainable or not, is pending before Larger Bench of Hon'ble Supreme Court. Learned advocate appearing on behalf of the applicant has also relied upon the decision of the Hon'ble Supreme Court in the case of P.J.Agro Tech Limited and other V/s.Water Base Limited reported in (2010)12 SCC 146 by submitting that if an employee of the company has issued the cheque from his personal account to pay the dues of the Company, the Company and/or its other Directors were not held liable for the said cheque issued by such an employee but for the dues of the accused. It is submitted that converse will also be applicable and, therefore, it is requested to quash and set aside the said complaint.
4. The present application is opposed by Mr.Y.N.Ravani, learned advocate appearing on behalf of the respondent No.1 herein -original complainant and affidavit-in- reply has been filed opposing the present application. It is submitted that allegations and averments in the said complaint make some specific case for the offence punishable u/s.138 of the Negotiable Instruments Act and, therefore, it is requested not to quash and set aside the complaint at this stage. It is submitted that in fact the applicant herein has issued the cheque in favour of the complainant, which has been dishonoured. It is submitted that it is not believable at all that all 100 cheques were signed and the same came to be lost. It is submitted that from the said cheque book, Cheque No.790836 was issued in favour of brother of complainant – Hareshbhai Prabhuram Ganatra on 03/09/2005, which also came to be dishonoured, for which, the complaint u/s.138 of the Negotiable Instruments Act, which was settled and the same came to be withdrawn by the brother of the complainant before Lok Adalat. It is submitted that after compromising in one matter, as an afterthought the present application has been preferred by raising a defence that cheque book containing 100 cheques had been lost and misplaced. It is further submitted that the applicant has given various applications to the Bank and police and also given advertisement/notice in the newspaper at some periodical intervals. It is submitted that after giving such notices and advertisement pertaining to cheques bearing Nos.790801 to 790900, after a period of five years with a view to prevent present respondent – original complainant and his brother from getting their legitimate dues, contention is raised that the cheques were issued from the cheque book, which was claimed to have been lost. It is submitted that first time on 17/11/1998, a letter was alleged to have been written to the bank about loss of the cheque book and again second letter was written to the bank on 27/07/2000 and the complaint with respect to loss of cheque book was filed with Navrangpura Police Station on 02/08/2000 and Notice was issued in daily newspapers having no wide circulation on 17/10/2000. It is further submitted that when the first intimation was already given to the bank on 17/11/1998, there was no reason again to write a letter on 27/07/2000 and registering the complaint after a period of 2 years with Navrangpura Police Station and issuing Notice in the daily newspapers. Considering the aforesaid facts and circumstances of the case, it is requested not to exercise the powers u/s.482 of the Code of Criminal Procedure more particularly considering the fact that the applicant being a Chartered Accountant would not keep 100 blank signed cheques.
5. Now so far as contention on behalf of the applicant that as no notice was given to the company, who has issued the cheque and the said company being arraigned as an accused, the complaint against the applicant lodged as a Director of the company would not be maintainable is concerned, it is submitted that as such the dues are of the applicant individually and he is signatory to the cheque in question and he can be said to be drawer of the cheque in question and, therefore, the complaint against the applicant would be maintainable. It is submitted that even the decision of the Hon'ble Supreme Court in the case of P.J.Agro Tech Limited and others (supra) relied upon by the applicant is concerned, it would not be of any assistance to the applicant in the facts and circumstances of the case. By making above submissions, it is requested to dismiss the present application.
6. Mr.L.B.Dabhi, learned Additional Public Prosecutor appearing on behalf of the State has requested to pass an appropriate order in the facts and circumstances of the case.
7. Heard learned advocates appearing on behalf of the respective parties at length. At the outset, it is required to be noted that respondent No.1 herein – original complainant has filed the impugned complaint against the applicant herein for the offence punishable u/s.138 of the Negotiable Instruments Act for dishonour of cheque, which is admittedly signed by the applicant, drawn from the bank account maintained by him. It is the case on behalf of the applicant that as cheque was reported to be lost in the year 1998, for which, intimation was given to the bank in the year 1998 and, therefore, for dishonour of said cheque, which is alleged to have been misused by the complainant, the impugned complaint deserves to be quashed and set aside. In support of his above submissions, learned advocate appearing on behalf of the applicant has relied upon the decision of the Hon'ble Supreme Court in the case of Rajkumar Khurana (supra). However, considering the said decision, it appears that in the said decision, no such absolute proposition has been laid down by the Hon'ble Supreme Court as sought to be contended by the petitioner. It is required to be noted that in the present case, the case/defence on behalf of the applicant that cheque-book containing 100 cheques having signature of the complainant on all 100 cheques was lost, requires detailed examination, which can be examined only at the time of trial. It is prima facie unbelievable that all 100 cheques were signed by the complainant and which came to be lost. It is required to be noted that initially the complainant has alleged to have informed the bank with respect to lost cheque book in the year 1998 and thereafter again intimation has been given in the year 2000 and even public notice was also given in the newspapers in the year 2000 and even the complaint to the concerned Police Station was alleged to have been made in the year 2000. Once intimation was already given to the bank in the year 1998 what was the reason again to intimate to the bank in the year 2000 and also making complaint before Navrangpura Police Station, is not appreciable at this stage. The aforesaid is required to be considered in detail at the time of trial. The aforesaid is required to be considered considering the fact that with respect to another cheque out of the very cheque-book one cheque was alleged to have been issued to the brother of the complainant, which was dishonoured and for which, brother of the complainant filed complaint under section 138 of the Negotiable Instruments Act, which was settled and the same came to be withdrawn by the brother of the complainant before Lok Adalat. Therefore, considering the facts and circumstances of the case, the impugned complaint is not required to be quashed and set aside in exercise of powers u/s.482 of the Code of Criminal Procedure.
8. Now so far as contention on behalf of the applicant that cheque in question has been drawn by Fascinating Leasing and Finance Private Limited and the applicant has signed the said cheque as Director of the said Company and no Notice has been issued upon the Company and even the said company is not arraigned as an accused and, therefore, the impugned complaint deserves to be quashed and set aside is concerned, it is to be noted that the cheque in question is admittedly signed by the applicant alleged to have been issued for its own dues and not the dues of the Company. Under the circumstances, the impugned complaint is not required to be quashed and set aside on the aforesaid ground.
Even the decision of the Hon'ble Supreme Court rendered in the case of P.J.Agro Tech Limited and others (supra) relied upon by the learned advocate appearing on behalf of the applicant would not be of any assistance to the applicant considering the facts and circumstances of the case. In the case before Hon'ble Supreme Court in the case of P.J.Agro Tech Limited and others (supra), the employee of the Company issued cheque from his personal account to pay dues of the Company and Company and other Directors of the said Company were sought to be prosecuted and in that case the Hon'ble Supreme Court has held that when cheque in question is not drawn from the bank account maintained by the Company and has been issued by the employee of the Company drawn from his personal account, neither the Company nor their Directors can be prosecuted for the offence punishable under Section 138 of the Negotiable Instruments Act. Under the circumstances, the aforesaid decision would not be of any assistance to the applicant. Under the circumstances, no case is made out to quash and set aside the impugned complaint against the applicant in exercise of powers u/s.482 of the Code of Criminal Procedure as whatever is submitted by the applicant, all are defences, which are required to be considered at the time of trial.
9. In view of the above and for the reasons stated hereinabove, the present application fails and the same deserves to be dismissed and is accordingly dismissed. Rule is discharged. Ad-interim relief granted earlier, if any, stands vacated forthwith.
[M.R.SHAH,J] *dipti