IMPORTANT POINT
Power of Attorney Holder, who ordered payment and signed the cheque, is primarily held liable to be proceeded against for the commission of the offence under Section 138 of the N.I. Act, caused by the drawing and issuing of the cheque, when there is no sufficient fund in the account. Unlike Indian Penal Code, there is no enabling provisions akin to Sections 34 to 38, 107, 149, 120B etc. under the Negotiable Instruments Act so as to rope in the person who caused the commission of the offence by sharing of mind or abetting or conspiring to do an act that constitutes an offence. According to the statutory mandate under Section 138 of the N.I. Act, a person who has drawn and issued the cheque is liable to be proceeded against for the offence under Section 138 of the N.I. Act.

J.B. Pardiwala, J.

1. Since a common question of law has been raised, the parties are also same and the issue being interrelated, both the captioned applications were heard together and are being disposed of by this common judgment and order.

2. Rule returnable forthwith. Ms. Pathak, the learned Additional Public Prosecutor waives service of notice of rule for and on behalf of the respondent No. 1 - State of Gujarat and Mr. Chetan Pandya, the learned counsel waives service of notice of rule for and on behalf of the respondent No. 2 - original complainant.

3. By these two applications under Section 482 of the Code of Criminal Procedure, 1973, the applicants seek to invoke the inherent powers of this Court, praying for quashing of the proceedings of the Criminal Cases Nos. 313 of 2015 and 314 of 2015 respectively pending in the Court of the learned Additional Chief Metropolitan Magistrate, Negotiable Instruments Act, Court No. 30, Ahmedabad.

4. The facts of this case may be summarised as under:

4.1 The applicant No. 1 is a proprietary concern of which the applicant No. 2 is the proprietor.

4.2 It is the case of the respondent No. 2 - original complainant that the applicant No. 2 is known to him. The original accused No. 3 shown in the complaint is the Power of Attorney of the applicant No. 2 herein. The Power of Attorney is none other than the son of the applicant No. 2 herein. It is the case of the complainant that since he had good relations with the family of the applicant No. 2 and as the applicant No. 2 was in need of finance for the business of the proprietary concern, the applicant No. 2 had borrowed an amount of Rs. 5,00,000/- (Rupees Five Lac only) from the complainant with the promise to repay the said amount as and when demanded by the complainant. The complainant lended Rs. 5,00,000/- to the applicants herein. It is the case of the complainant that thereafter, on demand, the Power of Attorney holder issued two cheque duly signed by him drawn on the account maintained by the proprietary concern dated 11th December 2014 for the amount of Rs. 5,00,000/- bearing cheque No. 207502 and cheque No. 207501 for the amount of Rs. 8,00,000/- (Rupees Eight Lac only) drawn on the Sardar Vallabhbhai Sahkari Bank Limited, Vasna Branch, Ahmedabad. The complainant presented the cheque issued by the Power of Attorney of the applicant No. 2 herein in his account, but the same came to be dishonoured on the ground that the account was closed. On receipt of such intimation from the Bank, the complainant issued Notice to the applicants herein including the Power of Attorney. As the applicants herein failed to make good the amount to the complainant, the complainant was left with no other option, but to file two private complaints in the Court of the learned Metropolitan Magistrate for the offence punishable under Section 138 of the Negotiable Instruments Act, which culminated in the Criminal Cases No. 314 of 2015 and 313 of 2015 respectively.

5. The applicants seek to quash the proceedings of the two criminal cases on various grounds.

6. Mr. Samir J. Dave, the learned counsel appearing for the applicants submitted that indisputably, the two cheques in question have not been signed by the applicant No. 2. Although the applicant No. 2 is the proprietor of the proprietary concern, yet, for the purpose of business, she had executed a special Power of Attorney in favour of her son, namely, Pulkit Harigopal Bhatiya for the purpose of operating the Bank account and drawing cheques for the purpose of business. Mr. Dave pointed out that the special Power of Attorney is dated 10th May 2013. Mr. Dave submitted that the son of the applicant No. 2 severed off all the relations with the family. Many disputes cropped up between the members of the family. In such circumstances, the applicant No. 2 revoked the special Power of Attorney issued in favour of her son by a Deed of Cancellation dated 30th July 2014. Mr. Dave pointed out that the cheques were dr