[1.0] Present Special Criminal Application under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “CrPC”) has been preferred by the petitioner herein – original accused No.4 to quash and set aside the impugned complaint being Criminal Case No.13032/2009 pending in the Court of learned Chief Judicial Magistrate, Vadodara. [2.0] That respondent No.2 herein – original complainant has filed the impugned complaint being Criminal Case No.13032/2009 against the petitioner – original accused No.4 and other accused in the Court of learned Chief Judicial Magistrate, Vadodara for the offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as “NI Act”), for dishonour of cheque issued by original accused No.1 which was alleged to have been given by original accused Nos.2 and 3. That in the said complaint, the learned Magistrate has directed to issue summons against the petitioner also for the offence under Section 138 of the NI Act. Hence, being aggrieved and dissatisfied with the impugned complaint/criminal proceedings as well as the order passed by the learned Magistrate directing to issue summons against the petitioner also for the offence under Section 138 of the NI Act, the petitioner herein – original accused No.4 has preferred the present Special Criminal Application.
[3.0] Shri Abhishek Mehta, learned advocate appearing on behalf of the petitioner has vehemently submitted that as such the petitioner has not committed any offence as alleged under Section 138 of the NI Act. It is submitted that infact the petitioner is not proprietor of original accused No.1, who is alleged to have issued the cheque. It is submitted that even in the complaint, nothing has been mentioned that the petitioner was the partner / proprietor of the original accused No.1 and/or that the petitioner was in day to day affairs and management of the original accused No.1. Therefore, it is submitted that in absence of any material and/or even the case on behalf of the petitioner that petitioner was partner of the original accused No.1 and that the petitioner was in day to day affairs and management of the original accused No.1 Company, the petitioner cannot be held vicariously liable under Section 141 of the NI Act for dishonour of the cheque alleged to have been issued by original accused No.1. It is submitted that even from the averments in the complaint, it is not clear as to who has issued the cheque in question which has been dishonoured and for which the complaint has been filed. Therefore, it is requested to quash and set aside the impugned complaint.
[4.0] Shri Gupta, learned advocate appearing on behalf of the original complainant has tried to oppose the present petition. However, he is not in a position to point out anything from the complaint that there are any allegations against the petitioner that he was the partner of original accused No.1 and/or that he was in day to day affairs and management of the original accused No.1 Company. Even from the averments in the complaint, he is not in a position to satisfy who issued the cheque which has been dishonoured for which the impugned complaint has been filed.
[4.1] Shri L.B. Dabhi, learned Additional Public Prosecutor has requested to pass appropriate order in the facts and circumstances of the case.
[5.0] Heard the learned advocates appearing for respective parties at length and considered the averments and allegations in the complaint. Even considering the averments and allegations in the complaint, it is not clear who had issued the cheque which has been dishonoured and for which the impugned complaint has been filed. Apart from the fact, even if it can be considered that cheque has been issued by original accused No.1 and given by original accused Nos.2 and 3 in that case also, nothing has been mentioned in the complaint that the petitioner was the partner of original accused No.1 and that he was in day to day affairs and management of the original accused No.1. On the contrary, it appears that original accused No.1 seems to be proprietorship firm. Under the circumstances, in absence of any such case on behalf of the original complainant, petitioner cannot be held responsible and/or vicariously liable under Section 141 of the NI Act for offence under Section 138 of the NI Act alleged to have been committed by the original accused No.1 and/or other accused. Under the circumstances, to continue criminal proceedings against the petitioner would be unnecessary harassment to the petitioner and the same shall be abuse of process of law and the Court. Therefore, it appears to the Court that this is a fit case to exercise powers under Article 226/227 of the Constitution of India read with Section 482 of the CrPC and to quash and set aside the impugned complaint/criminal proceedings.
[6.0] In view of the above and for the reasons stated above, present Special Criminal Application succeeds. Impugned complaint being Criminal Case No.13032/2009 pending in the Court of learned Chief Judicial Magistrate, Vadodara is hereby quashed and set aside so far as present petitioner herein – original accused No.4 is concerned. However, the same shall be without prejudice to the rights and contentions of the original complainant/prosecution qua other accused persons and the trial against them shall be proceeded further by the learned Magistrate in accordance with law and on merits and without in anyway being influenced by the present order. Rule is made absolute to the aforesaid extent.
(M.R. Shah, J.) menon