IMPORTANT POINT
Only payee or holder in due course can be complainant when cheque is dishonoured.

Daya Chaudhary, J.—This order of mine shall dispose of three Petitions bearing Crl. Misc. No. M-30961 of 2010, Crl. Misc. No. M-30964 of 2010 and Crl. Misc. No. M-4069 of 2011 as the facts and the law point involved in all the three Crl. Misc. No. M-30961 of 2010 (2) cases are similar. For the sake of convenience, facts are being taken from Crl. Misc. No. M-30961 of 2010.

2. The subject matter of challenge in the present petitions are Criminal complaints as well as summoning orders. Complainant-respondent-Bank filed criminal complaint No. 1029-A/2 dated 22.12.2009 against the petitioners under Sections 138/141 of the Negotiable Instruments Act (hereinafter referred to as ‘the Act’) alleging therein that various credit facilities as well as over-draft facilities were availed by M/s Atul Paints. It is further alleged that in discharge of its legal liability to adjust the over due amount, three cheques bearing, No. 47368 dated 28.10.2009 amounting to 3 lacs; cheque No. 473676 dated 28.10.2009 for 4 lacs and cheque No. 473677 dated 28.10.2009 for Rs. 4 lacs were issued by the petitioners in favour of complainant-Bank. On presentation of said cheques for encashment, the same were dishonoured and returned vide memo dated 29.10.2009 with the remarks “Funds insufficient”. Accordingly, the complaint under Sections 138 and 141 of the Act was filed against the petitioners and the petitioners were summoned to face the trial vide order dated 24.12.2009.

3. The complaint as well as summoning order have been challenged on the ground that petitioner No.1 is a Private Limited Company, namely, Germane Technologies and it has two Directors, namely, Atul Ahluwalia and Anand Sagar, however, the complaint has been filed against Atul Ahluwalia only and M/s Atul Paints has not been made an accused in the complaint. Learned counsel for the petitioners submits that cheques in dispute were paid by Germane Technologies to M/s Atul Paints and there is no legally enforceable debt or legal liability towards the respondent-Bank and no offence is made out under Section 138 of the Act. Learned counsel further submits that Germane Technologies had ordered for some goods from M/s Atul Paints and the said cheques were paid by Germane Technologies to M/s Atul Paints as an advance. However, when the goods were received by Germane Technologies, the same were not in accordance with the order placed and it was for this reason the payment was cancelled. Learned counsel also contends that the complaint against the petitioner-company is not maintainable as the respondent-Bank has a right to recover from M/s Atul Paints only.

4. Learned counsel for the respondent opposed the contentions raised by learned counsel for the petitioners on the ground that Germane Technologies Private Limited and M/s Atul Paints are run by Atul Ahluwalia and his father Anand Sagar Ahluwalia and both are the Directors of accused-company, who stood as guarantors for the loan availed by Atul Ahluwalia in the name of his proprietor concerned M/s Atul Paints. The guarantee forms were executed by both the Directors of the Company i.e. Atul Ahluwalia and Anand Sagar Ahluwalia in favour of the Bank and there was default in repayment of the loan amount. Atul Ahluwalia executed the cheque in question being the Director and authorized officer of the guarantor Company. The complaint has rightly been filed and on the basis of allegations in the complaint, summoning order was passed. Heard the arguments advanced by learned counsel for the parties and have also gone through the complaint, summoning order as well as other documents available on the file. Admittedly, a complaint was filed by the respondent-Bank against the petitioners i.e. Germane Technologies Private limited as well as Atul Ahluwalia. Germane Technologies has two Directors, namely, Atul Ahluwalia and Anand Sagar Ahluwalia. M/s Atul Paints was supposed to make repayment of the loan amount to the respondent-Bank, however, M/s Atul Paints