JUDGMENT :

1. Heard Mr. R. Hussain, learned counsel for the petitioners. Also heard Mr. D. Chakravarty, learned counsel for the sole respondent.

2. In this petition, under Section 482 of the Cr.P.C., the two petitioners have prayed for quashing of the order, dated 16.03.2020, and all subsequent orders, passed by the learned Chief Judicial Magistrate, Cachar, Silchar in N.I. Case No.39 of 2020. It is to be mentioned here that vide the impugned orders, the learned Court below has taken cognizance upon the complaint lodged by the respondent under Section 138 of the N.I. Act, and issued process against present petitioners.

3. The factual background, leading to filing of the present petition, is briefly stated as under:

“On 01.04.2019, the petitioner No.2, being the Director of Durga Krishna Store Pvt. Ltd, a company incorporated under the Companies Act 1956, had purchased some goods and as payment security he had given one undated Account Payee Cheque No. 511915, for a sum of Rs. 27,54,000/ of Vijaya Bank, in the purchase order. The respondent Firm has issued two Tax Invoices, dated 01.04.2019, for a sum of Rs. 13,85,064/ and 09.04.2019 for a sum of Rs. 13,62,354/ (All total Rs. 27,47,418/) against the said purchase order. The petitioners have paid the said amount to the complainant’s account, on 29.05.2019 and 03.06.2019, and the amounts were debited from his account and the concerned bank has issued one statement under their seal to that effect. But, suppressing the said facts the complainant has, with ulterior motive, served demand notice upon him, asking for payment of the check amount of Rs.27,54,000/, which was given as a security, and the petitioners have given reply to the said notices. But, inspite of payment of the cheque amount, the complainant has instituted the case under section 138 NI Act, with ulterior motive.”

4. Being highly aggrieved, the petitioner approached this court for quashing the proceeding on the following grounds, that :-

(i) The learned court below has erred in law and in facts while passing the impugned order, resulting abuse of the law and miscarriage of justice;

(ii) The learned court below, without complying the mandate under section 138 read with 141 of the NI Act took cognizance of the offence;

(iii) The cheque in question was issued by the director of the company, but the company has not been arrayed as an accused in the case by the complainant, and as such the case is not maintainable;

(iv) The complaint is not maintainable as no demand notice was issued to the company and that the petitioner No. 1 is not the director of the company;

(v) The company ought to have been prosecuted and the persons mentioned in the other category, could have been made vicariously liable for the offence under section 138 NI Act, and as the complainant has failed to implead the company as party, the petitioners cannot be made liable for the offence under section 138 NI Act;

(vi) The company is a necessary party to the proceeding and without the company being arrayed as party to the proceeding, the liability towards the petitioners did not arise;

(vii) The cheque in question, since been issued as security cheque, not in discharge of legally enforceable debt, and as such presentation of the said cheque without notice to the company, would not attract the liability under section 138 NI Act;

(viii) The complainant has never made any averment in the complainant against the petitioner No.2, and as such, issuance of process, under section 138 of the NI Act is nothing but an abuse of the process of the court;

(ix) The petitioner No.1 is neither the director of the company, nor he has issued any cheque, nor he has any authority to act on behalf of the company and the complainant has not filed any document to show that in what capacity he was responsible for the day to day affairs of the company;

(x) The complaint petition is not supported by any document like goods forwarding note, ledger Account as well as any audited balance sheet.

5.