IMPORTANT POINT
For maintaining prosecution under Section 141 of NI Act arraying of company as an accused is imperative.

Vijay Prakash Pathak, J.— The present petition under Section 482 Cr.P.C. has been filed with a prayer to quash the Criminal Complaint Case No.134 of 2007, Ram Singh Rathaur v. Yogendra Kumar Khullar @ Bittoo, under Section 138 of the Negotiable Instrument Act (hereinafter referred to as the Act), PS Banna Devi, District Aligarh.

2. The brief facts of the case are that opposite party No.2 Ram Singh Rathaur filed a complaint against the applicant for the offence under Section 138 of the Act with the allegations that the accused applicant was partner of V.I.P. Financiers Firm (Regd.) situated at Agarwal Market, Railway Road, Thana Banna Devi, District Aligarh and a sum of Rs.50,000 was given as loan to the said firm on 4.1.2000 @ 2 per cent monthly interest by the opposite party No.2, for which a receipt was also given on 4.1.2000 itself. It is alleged that for the last one year as the accused did not pay any interest, the complainant demanded his money back towards which the accused gave him a cheque dated 4.1.2007 of account No.3107, Canara Bank, Apsara Complex, Main Branch Aligarh with the assurance that the said cheque shall never be bounced. Thereafter the complainant deposited the said cheque on 24.2.2007 in his Savings Bank A/c in Canara Bank, Main Branch, Aligarh but when he went to the Bank to enquire about the said cheque in his account on 7.3.2007, it was found that the same was dishonoured. The complainant sent a legal notice to the applicant on 13.3.2007 regarding the bouncing of the said cheque informing him to return the money within 15 days from the receipt of the said notice but till date, he did not return the same. Hence the complainant was filed on 4.4.2007.

3. On receiving the said complaint, the learned Magistrate recorded the statement of the complainant under Section 200 Cr.P.C. and after considering the entire materials on record, the learned Magistrate vide order dated 1.8.2007 summoned the applicant to face trial for the offence under Section 138 of the Act finding a prima facie case against him.

4. Heard Sri Amit Daga, learned counsel for the applicant, Sri S.P.S. Chauhan learned counsel for opposite party No.2 as well as learned AGA and perused the record.

5. Learned counsel for the applicant has mainly contended that admittedly the money amounting to Rs.50,000 was given to the applicant as loan on interest being partner of V.I.P. Financiers Firm (Regd.), situated at Agarwal Market, PS Banna Devi, District Aligarh for his firm, hence the principal accused shall be the firm itself and the firm not being impleaded as an accused by the complainant, the prosecution cannot be maintained as against the applicant. It has also been argued that the applicant was only partner of the said firm and it is not averred in the complaint that at the time the offence was committed, he was in charge of and was responsible for conduct of business of the firm. Hence the requirement of Section 141 of the Act is not satisfied for the purposes of lodging a complaint against the applicant for an offence under Section 138 of the Act. It is also contended that the alleged notice was not served upon the applicant but according to the complaint itself, the information of notice was given at the house of the applicant but not at the office of the firm

6. In support of his contentions, learned counsel for the applicant has cited two decisions of Hon’ble Apex Court reported in Aneeta Hada v. M/s. Godfather travels & Tours Pvt. Ltd. 2012(77) ACC 924 and SM.S. Pharmaceuticals Ltd. v. Neeta Bhalla & Another, 2005(8) SCC 89.

7. On the other hand, learned counsel for opposite party No.2 has contended that the cheque issued by the applicant to opposite party No.2 was bounced and hence the liability is upon the applicant for payment of the amount in question. It is also contended that the learned Magistrate has rightly summoned the applicant to face trial after considering the entire materials on record and finding a prima facie off