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2012(1) Bankmann 586 (All.)
ALLAHABAD HIGH COURT
Naheed Ara Moonis, J.
Iqra International Marigahan —Petitioner
versus
State of U.P. and Anr. —Respondents
Application No. 5681 of 2009
Decided on 26.9.2011
For the Petitioner:Smt. Manju R. Chauhan, Advocate.
For the Respondent:Govt. Advocate, A.S. Dubey, Archana. Mishra, Advocates.
IMPORTANT POINT
While exercising jurisdiction under Section 482 Cr.P.C. High Court would not ordinarily embark upon enquiry as to whether offence in question is made out or not.
Headnote:Negotiable Instruments Act, 1881—Sections 138 and 141—Criminal Procedure Code, 1973—Section 482—Dishonour of cheque—Summons issued—Offence by company—Person who is sought to be vicariously liable for a criminal offence under Section 141 should be at the time offence was committed was in-charge of and was responsible to company for conduct of business of company at the time of commission of offence—If allegations made in complaint only is taken at its face value and accepted in entirety applicant has rightly been summoned by trial court—While exercising jurisdiction under Section 482 Cr.P.C. High Court would not ordinarily embark upon enquiry as to whether offence in question is made out or not—Appreciation of accusation would not be assessed as this is function of trial court—Application dismissed. (Paras 8 to 10)
Naheed Ara Moonis, J.— Heard the learned counsel for the applicant, learned counsel appearing on behalf of the opposite party No.2, learned A.G.A. and perused the record.
2. The instant petition has been filed for quashing the proceedings initiated against the applicant in Complaint Case No.2446 of 2008, M.L. Sons Creation v. Iqra International, Mariyahu through its Partner Yunus, under Section 138 Negotiable Instruments Act, police station Bhadohi, district Sant Ravi Das Nagar. The complaint was filed on behalf of M.L & Sons through its proprietor Sanjay Dubey on 10.6.2008 that the applicant’s firm had purchased carpets of Rs.4,02,410.25 from the complainant firm and four cheques of different dates in respect of the aforesaid payment were given. The details of which are as under:
(i) Cheque No.012414 dated 4.2.2008 of Rs.1,10,000;
(ii) Cheque No.012415 dated 21.2.2008 of Rs.90,000;
(iii) Cheque No.012416 dated 21.2.2008 of Rs.1,00,000; and
(iv) Cheque No.012417 dated 25.2.2008 of Rs.1,00,000.
3. The first cheque was presented to the Bank on 4.2.2008 but it was returned with the bank endorsement that amount was insufficient. The complain- ant immediately informed to the applicant but he had assured that the payment of the cheques will be done together and on his assurance when all the four cheques were again presented on 16.4.2008 were dishonoured and when the complainant again informed him through telephone the applicant had assured him that there is some .delay in getting money from outside the country, therefore, he could again present the cheque and the money will be paid after 20 days. The complainant again presented the aforesaid four cheques on 9.5.2008 at I.D.B.I. Branch, Singra, Varanasi but the cheques were returned with the endorsement that on account of insufficient fund, thereafter a registered notice was sent on 19.5.2008 to the applicant and after receiving the notice a complaint was filed under Section 138 Negotiable Instruments Act. The complainant had filed the original cheque with the endorsement of the Bank and the receipt of notice given through Advocate was filed in support of the com- plaint. The learned Chief Judicial Magistrate, Bhadohi prima facie found that a case under Section 138 Negotiable Instruments Act is made out against the applicant hence taken cognizance and issued summons by order dated 22.10.2008.
4. It is contended by the learned counsel for the applicant that the court below has erred in summoning the applicant. There is no specific averment in the complaint with regard to the responsibility as to whether the partner or the firm is responsible for issuing the cheques. The cheques in question were given as a security and in other words it ought to have been mentioned that the company or association had committed the offence. The applicant who is partner through whom the notice has been served while the present complaint shows that the case has been registered against the firm.
5. It is contended by the learned counsel for the applicant that the court below has erred in summoning the applicant as the four cheques which were given to the complainant firm were post dated cheques and was given as security that when payment is made to the firm by the applicant the cheque would be returned by them. In the complaint it has not been mentioned as to whether the company had committed any offence. The complaint has been instituted against the firm and not against the partner. Neither the firm nor the partner but also the present applicant had received notice as alleged in the complaint. The applicant only came to know about the complaint case registered against him when he went to take due amount of payment from the complainant and the complainant firm refused to return the post dated cheques. The applicant had already made a payment of Rs.1,90,000 on 13.5..2008 to the complainant firm yet the complaint has been made on false allegation, which is not at all maintainable against the applican
