Shiv Narayan Dhingra, J. — Leave to appeal is allowed for the reasons given therein. Crl. Appeal No. 643/2007

This appeal has been preferred against the order of learned Additional Sessions Judge dated 29th September, 2006 whereby he allowed a revision filed by the respondent and set aside a notice issued under Section 251, Cr.P.C. to the respondent on a complaint under Section 138 of Negotiable Instruments Act filed by the appellant.

2. Brief facts relevant for the purpose of deciding this appeal are that the appellant filed a complaint under Section 138 against Shri Sita Ram Singhal, Secretary, Sanjay Gandhi Memorial Co-op., Housing Building Society Limited, R/o Sanjay Gram, Delhi Road, Gurgaon 122001, Haryana. It was alleged in the complaint that the complainant made full payment for purchase of a plot to accused in the year 1994 but accused failed to deliver the possession of the plot to complainant. Thereafter, a settlement was arrived in respect of the plot and accused agreed to pay a sum of Rs. 4,10,000 to the complainant. In terms of this agreement cheques bearing No. 528743 dated 18.10.2004 and 528744 dated 18:11.2004 were issued for sums of Rs. 40,000 and 1,00,000 respectively as part of payment. These cheques got dishonoured and were returned to the complainant with endorsement ‘Funds Insufficient’. The complainant served a legal notice through her Advocate on accused within a period of 15 days but no payment was made by the accused. Hence, the complaint was filed.

3. After recording and appreciating pre-summoning evidence the learned M.M. served a notice under Section 251, Cr.P.C. on the accused respondent against which a revision was preferred by the respondent which was allowed by the impugned order.

4. The learned A.S.J. observed that the complainant, in order to succeed, has to show that it was the company that was responsible to pay and has further to show that it was accused, who was in-charge and responsible for business of company (Housing Society). In the present case the complainant has not mentioned that it was the company who was responsible to pay the cheque amount but has mentioned the name of accused Sita Ram Singhal, Secretary of the company as the person responsible. Moreover complainant has impleaded accused in his personal capacity and it is only for the purpose of identification that he has been mentioned as Secretary. It would not amount to saying that he has been impleaded as the Secretary of the Society. The ASJ also observed that accused has been shown to be a resident of a particular place which was not the address of the Society but was his residential address and notice was sent to accused in his personal capacity and it was not mentioned in the notice that accused was being served in the capacity of the Secretary of the Society. It was not stated in the complaint or in the notice that housing society was liable to make the payment of the aforesaid amount to the respondent and it was Society who issued the cheques. The cheques were signed by the accused in the capacity of Secretary of the Society and not in his individual capacity, so he could not be made accused in his individual capacity.

5. A Court while considering the complaints and cases before it cannot ignore the practical aspects of the dealing between the parties. It is not to be forgotten that accused was Secretary of a Housing Society and it was he who signed the cheques and issued the cheques. The entire complaint shows that it was accused who had dealing with the complainant. It is evident that complainant had been face-to-face with the accused and complainant knew only accused as the person who was dealing about allotment of plots of society and ultimately when plot was not allotted it was he who agreed for refund of the amount and issued the cheques in question. In case of Housing Societies, it is normally the Secretary of the Housing Society who acts on behalf of the society and deals with members or applicants. Wh