IMPORTANT POINT
There can be no criminal prosecution without any cause of action.

Suresh Kait, J.— Vide the instant petition, the petitioner has sought quashing of the order dated 08.12.2011 passed by the Metropolitan Magistrate in Complaint Case No.147/2008 under Section 138 r/w Sections 141 and 142 of the Negotiable Instrument Act, 1881.

2. The issue raised by the petitioner is that the petitioners had resigned way back on 01.11.2007 whereas the cheques in question were issued and dishonoured thereafter on 31.07.2008.

3. In support of his submissions, the ld. Counsel for the petitioner has produced a certified copy of Form-32 whereby this fact has been verified that the petitioners resigned w.e.f. 01.11.2007.

4. Ld. Counsel for the respondent on the other hand submits that the company namely M/s Yashi Media Works Pvt. Ltd. is a one family company therefore the respondent/ accused No.4 and 5 (petitioners herein) are mother and wife of respondent/accused No.2 and the said payment in question is from 2003 onwards when they were all a part of the said company. Ld. Counsel further submits being the running account the details of the petitioner’s four cheques for a sum of Rs.5,48,562/- are as under:

(i) Cheque bearing No.592174 dated July 31, 2008 for a sum of Rs.1,37,104/- (Rupees one lakh thirty-seven thousand one hundred four only) drawn on Corporation Bank, Sarita Vihar, New Delhi-110044;

(ii) Cheque bearing No.592175 dated July 31, 2008 for a sum of Rs.55,776/ - (Rupees fifty-five thousand seven hundred seventy six only) drawn on Corporation Bank, Sarita Vihar, New Delhi-l10044;

(iii) Cheque bearing No.592176 dated July 31, 2008 for a sum of Rs.1,15,000/- (Rupees one lakh fifteen thousand only) drawn on Corporation Bank, Sarita Vihar, New Delhi-110044;

(iv) Cheque bearing No.592177 dated July 31, 2008 for a sum of Rs.1,15,000/- (Rupees one lakh fifteen thousand only) drawn on Corporation Bank, Sarita Vihar, New Delhi-110044;

5. Therefore the amount which claimed in the complaint, the petitioners are also liable under Section 138 of Negotiable Instrument Act, 5. Ld. Counsel has relied upon a case of the Supreme Court decided on 13.04.2011 “Rallis India Ltd. v. Poduru Vidya Bhusan & Ors.” and the relevant portion is reproduced as under :

“8. At the outset, learned counsel appearing for Appellant contended that in the light of the aforesaid averments having been made categorically in the original complaints, no case was made out for discharge of the Respondents. It was also contended that Respondents have denied their vicarious liability for the offences under Section 138/141 of the Act, on the ground that they had retired from the partnership firm in 2001/2002, i.e., much prior to the issuance of the cheques in question in 2004. It is further contended by the learned counsel for the Appellant that the said denial cannot be accepted as it would be a matter of evidence to be considered by the Trial Court. Even the question whether or not they would be responsible for the impugned liabilities would be required to be answered only after the parties go to trial as it is disputed question as to when the Respondents had actually retired from the partnership firm, before the issuance of dishonoured cheques.

11. Thus, in the light of the aforesaid averments as found by us in the Criminal Complaint, we are of the considered opinion that sufficient averments have been made against the Respondents that they were the partners of the firm, at the relevant point of time and were looking after day to day affairs of the partnership firm. This averment has been specifically mentioned by the Appellant in the complaint even though denied by the Respondents but the burden of proof that at the relevant point of time they were not the partners, lies specifically on them. This onus is required to be discharged by them by leading evidence and unless it is so proved, in accordance with law, in our opinion, they cannot be discharged of their liability. Consequently, High Court committed an error in discharging them