Specific averments are essential in a complaint to establish vicarious liability under Section 141 of the Negotiable Instruments Act; mere assertions are insufficient.

JUDGMENT :

KAUSHIK GOSWAMI, J.

Heard Mr. B.K. Das, learned counsel for the petitioner. Also heard Mr. D.K. Kothari, learned counsel for the respondent.

2. By way of this petition under Section 482 of the Cr.PC, 1973, the petitioner is seeking quashing of the proceedings in C.R. Case No. 1220/2017 under Section 138 of the Negotiable Instruments Act, 1881 , (hereinafter referred to as st the “N.I. Act”) pending before the learned Judicial Magistrate 1 Class, Kamrup (M) at Guwahati as well as the Order dated 24.04.2017, whereby cognizance was taken against the petitioner as well as the other accused underSection 138 of the N.I. Act, so far the petitioner is concerned.

3. The brief facts of the case is that the respondent filed a complaint case being Complaint Case No. 1220/2017 before the jurisdictional Judicial Magistrate (hereinafter referred to as the ‘Magistrate Court’) under Section 138 of the N.I. Act against Junbeli Dhaba, Jagiroad, the petitioner and Smt. Seema Sarma alleging inter alia that Smt. Seema Sarma had issued a cheque amounting to Rs. 8,94,787/- (Rupees Eight Lakhs Ninety Four Thousand Seven Hundred Eighty Seven) only towards discharge of liability in favour of the respondent and the said cheque was dishonoured by the Bank for the reasons ‘funds insufficient’ and therefore, the complaint case was filed.

4. Accordingly, the jurisdictional Police Station was directed to investigate the complaint and after completion of the inquiry and upon the materials being placed before the Magistrate Court, the Magistrate Court was pleased to take cognizance against Junbeli Dhaba, the petitioner and Smt. Seema Sarma under Section 138 of the N.I. Act. Situated thus, the present quashing petition has been filed by the petitioner.

5. Mr. B.K. Das, learned counsel for the petitioner submits that though the petitioner has been referred as the proprietor of the Junbeli Dhaba, however, he is not the proprietor of the said Dhaba. In fact, it is Smt. Seema Sarma who is the proprietor of the said Dhaba and the signatory to the cheque which was dishonoured.

6. He further submits that the complaint apart from referring the petitioner as the proprietor of the said firm does not contain any averments whatsoever as regards the role played by the petitioner in the alleged offence. He accordingly submits that no cognizance ought to have been taken by the Magistrate Court against the petitioner on the basis of such complaint, which falls short of materials against the petitioner to constitute an offence under Section 138 of the N.I. Act.

7. In support of the aforesaid submission, he relies upon the decisions of the Apex Court in the case of:-

(i) S.M.S. Pharmaceuticals Ltd. Vs. Neeta Bhalla and Another , reported in (2005) 8 SCC 89 .

(ii) Harshendra Kumar D. Vs. Rebatilata Koley and Others , reported in (2011) 3 SCC 351 .

(iii) National Small Industries Corporation Ltd. Vs. Harmeet Singh Paintal and Another ,reported in (2010) 3 SCC 330 .

8. Per contra, Mr. D.K. Kothari, learned counsel for the respondent submits that it is clearly averred in the complaint that the petitioner is the proprietor of the Junbeli Dhaba on behalf of which Smt. Seema Sarma had issued the cheque, which was dishonoured.

9. He accordingly submits that under Section 141 of the N.I. Act, the petitioner is vicariously liable and therefore, the order of the Magistrate Court taking cognizance against the petitioner under Section 138 of the N.I. Act warrants no interference from this Court. He further submits that the case being at the initial stage and is yet to proceed, any interference at this stage would scuttle the criminal investigation at the bud.

10. In support of the aforesaid submission, he relies upon the decisions of the Co-ordinate Bench of this Court in the case of:-

(i) Mirnal Kumar Sarma Son of Late Kandarpa Kumar Sarma Vs. M/S Jain Agencies, reported in 2018 0 Supreme (Gau) 203

(ii) Nilam Devi Bagaria Vs. Virmal Kr. Todi, reported in 2005 2 GauLR 600.

11. I have given my pru