A power of attorney holder can file a complaint under Section 138 of the N.I. Act provided they assert personal knowledge; however, enforcing a compromise via criminal proceedings is not permitted.

JUDGMENT :

J. C. Doshi, J.

1. The instant petition filed under Article 226 and 227 of the Constitution of India, 1950, read with Section 482 of the Criminal Procedure Code ( Cr.P.C.) 1973, seeks following reliefs :

(a) To allow this petition;

(b) To issue a writ of mandamus and/or any other appropriate writ, order or direction quashing and setting aside the Criminal Case No.89623 of 2019 pending before the learned Additional Chief Metropolitan Magistrate (NI Act) Court No.37, Ahmedabad qua the petitioners herein and pass all other consequential and further orders in that regard;

(c) To direct the respondent No.2 to bear the cost of the proceedings that have been required to be instituted on account of the malice of the respondent No.2;

(d) Pending admission, hearing and final disposal of the present petition, be pleased to stay all further proceedings of Criminal Case No.89623 of 2019 pending before the learned Additional Chief Metropolitan Magistrate (NI Act) Court No.37, Ahmedabad qua the petitioners herein;

(e) Pending admission, hearing and disposal of the present petition, be pleased to direct the respondent No.2 to withdraw the Criminal Case No.COMPL/129(C) of 2018 pending before the learned Magistrate Court, at Bhojpur, Bihar;

(f) To pass any other and further orders as may be deemed fit and proper to this Hon'ble Court.

2. Brief facts are as under :

2.1 The respondent has filed the criminal complaint under Section 138 read with Section 141 of the Negotiable Instruments Act ( for short the ‘N.I Act’) against the petitioners and its Director . According to the respondent No.2 the complainant and the petitioners were engaged in a business relationship pursuant to which since the petitioners-company was in need of Rs. 9 crores, the complainant had tendered a loan of Rs. 9 crores to the petitioners between August to November 2011. In the year 2017 when the amount of loan was reclaimed by the respondent, the petitioners issued a cheque on 14.11.2017, bearing No. 679730 drawn from the account No. 33001720194. The complainant deposited the said cheque on 15.11.2017 but however, the cheque was not encashed and returned with the endorsement “account closed”.

2.2 According to the complainant, he had approached the petitioner, however, no positive response has been found. Therefore, a statutory notice under Section 138 of the N.I Act was issued to the petitioners and its Director on 13.12.2017 which was served on 15.12.2017. Evasive reply of the notice was given by the petitioners and its Director on 29.12.2017. Since the petitioners and its Director have not paid the amount of the cheque which was returned unpaid at the end of statutory time limit, the complainant had filed the criminal complaint under Section 138 read with section 141 of the N.I Act which was registered as Criminal Inquiry case No. 100 of 2018 before the learned Additional Chief Metropolitan Magistrate Court No. 37, Ahmedabad who after recording the verification of the complainant issued process for the offence punishable under Section 138 read with section 141 of the N.I Act against the petitioners and its Director.

2.3 Being aggrieved and dissatisfied by the issuance of the process aforesaid, the petitioners are before this Court by way of this petition by claiming the aforesaid relief. According to the petitioner the parallel incident took place between the parties whereby a settlement was arrived by tri-partite compromise dated 9.6.2018 between Mr. Ritesh Dilipbhai Kotak, complainant, Bharat Ratilal Deliwala one of the accused and confirming party Hitesh Ishwarlal Thakkar. Ac