IMPORTANT POINT
Pendency of reference before a larger Bench is no bar to follow judgment under reference.

Smt. Anuja Prabhudessai, J.—Rule. Rule made returnable forthwith with the consent of the parties.

2. The applicant, who is an accused no.1 in C.C.No.2995/SS/2013, C.C.No.1348/SS/2012 and C.C.No.1350/SS/2012, has invoked the powers of this court under Section 482 of Cr.P.C. for quashing the impugned orders dated 24.4.2015 whereby the learned Sessions Judge, Gr. Mumbai, dismissed the revision applications Nos.502 of 2014, 299 of 2014 and 101 of 2014 for quashing the process against the applicant for offence under Section 138 of the Negotiable Instruments Act.

3. The brief facts necessary to decide these applications are as under:

The respondent no.1- complainant had filed complaints against the applicant, one Mr. Ketan Raj and Jeevandeep Hospital & Critical Care Centre (hereinafter referred to as Jeevandeep Hospital) for offence under Section 138 of the Negotiable Instruments Act. It is alleged that the applicant and the other two accused were in need of finance and had therefore approached the complainant company with a request to grant medical equipment loan facility. After considering the said request and upon execution of various documents, the complainant company disbursed the loan.

4. The applicant had issued a cheque dated 10.9.2013 for Rs.97,962/- (subject matter of CC/2995/SS/2013), two cheques dated 1.5.2012 for Rs.2,13,552 and Rs.2,03,280/- (subject matter of CC/1348/2012) and a cheque dated 1.5.2012 for Rs.91218/- (subject matter of CC/1350/2012) in favour of the complainant towards repayment of the loan. The said cheques were dishonoured with remark “account closed”. The complainant company issued demand notices and called upon the applicant and the other accused to repay the loan amount. The applicant and the other accused having failed to pay the cheque amount, the complainant company filed the afore stated complaints for offence under Section 138 of the Negotiable Instruments Act.

5. The learned Magistrate by orders dated 11.7.13 and 13.11.2013 issued process against the applicant and the other two accused for offence under Section 138 of the Negotiable Instruments Act. The applicant herein had challenged the said orders before the Court of Sessions, Greater Mumbai. The revision applications came to be dismissed by the impugned orders dated 24.4.2015. Being aggrieved by the said orders, the applicant has invoked the jurisdiction of this court under Section 482 of Cr.P.C. for quashing the said orders dated 24.4.2015 as well as the orders of issuance of process.

6. Mr.Ramsinghani, the learned Counsel for the applicant has submitted that the subject cheques were drawn on the account maintained by the accused no.3 Jeevandeep Hospital, a proprietorship concern and not on the account maintained by the applicant accused no.1. The learned Counsel for the applicant has further submitted that the applicant is neither a proprietress of the accused no.3 Jeevandeep Hospital nor the drawer of the subject cheques, but she had signed the cheques only as an authorized signatory of the accused no.3 Jeevandeep Hospital. The learned Counsel for the applicant therefore contends that the applicant is not liable to be prosecuted for the offence under Section 138 of the Negotiable Instruments Act. In support of these contention he has relied upon the decisions in the case of (i) Bimal Singh Kothari v. State of Goa, 2008(1) Mh.L.J. 841 and (ii) Aparna Shah v. Sheth Developers Pvt. Ltd., 2013(4) Bom. C.R. 879 (SC).

7. Ms. Rajani, the learned Counsel for the respondent submitted that the applicant herein was the first borrower of the said loan and that the loan application shows that the applicant runs the said Jeevandeep Hospital. The learned Counsel for the respondent has further stated that the loan account statement is in the name of the applicant herein. Furthermore, the applicant no.1 being the principal borrower as well as the drawer of the cheques is liable under the provisions of Section 138 of the Negotiable Instruments Act.