Authorized signatory of company cheque from company account is not 'drawer' under Section 138 NI Act; company is drawer and must be impleaded with notice served; non-impleadment fatal, proceedings quashed.

JUDGMENT :

Virender Singh, J.

The petitioner has filed the present petition, under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, (hereinafter referred to as ‘the B.N.S.S.) for quashing order dated 6.5.2023, (Annexure P-3), passed by the Court of learned Chief Judicial Magistrate, Mandi, H.P. (hereinafter referred to as ‘the trial Court’), in Complaint No. 15-III/2023, titled as, “Gopal Krishan versus Gursev Singh”.

2. Vide order dated 6.5.2023, the learned trial Court has taken the cognizance of the offence, punishable under Section 138 of the Negotiable Instrument Act, and notice of accusation was put to the petitioner, on 17.6.2024.

3. Parties to the present lis are referred to in the same manner, in which, they were referred to by the learned trial Court.

4. Brief facts leading to filing of the present petition, before this Court, as per the record, may be summed up as under:

4.1 Complainant Gopal Krishan has filed the complaint, under Section 138 of the Negotiable Instrument Act (hereinafter referred to as ‘the N.I. Act’), against accused Gursev Singh on the ground that complainant was the registered owner of vehicle (Tipper) bearing registration No. HP-65-4071. He had sold the same to accused, vide agreement, dated 28.10.2015 and the sale consideration was to be paid by the accused to the financing bank, as per the EMI fixed by the bank. The accused has not paid any EMI for a period of more than seven years.

4.2 It is further pleaded that as per the case of the complainant in complaint, when, he demanded the sale consideration amount and use and occupation charges of the above truck, accused issued a cheque No. 000606, dated 29.12.2022, amounting to Rs. 29,00,000/- to the complainant, issued out of his bank account, maintained with the Central Bank of India, Branch Office, Gutkar, Mandi, H.P.

4.3 As per the case of the petitioner-accused, the above said cheque was presented by the complainant on 2.3.2023, in his account No. 79470100003281 at Bank of Baroda, Branch Office Ner Chowk, District Mandi, H.P., however, the same was dishonoured and the same was returned back to the complainant, vide memo dated 27.3.2023 on the ground of “Account Closed”.

4.4 It has further been pleaded by the complainant that accused has intentionally and deliberately issued the bogus cheque, in favour of the complainant, in order to cheat him. After receiving the dishonoured memo, complainant issued requisite legal notice on 3.4.2023. Despite knowledge of the notice, payment of Rs. 29,00,000/- was not made. After waiting for the statutory period, the complainant has filed the complaint before the learned trial Court, in which, the learned trial Court has passed the summoning order, dated 6.5.2023. After securing his presence, notice of accusation was put to the accused, vide order dated 17.6.2024. The aforesaid order has been assailed, before this Court, by way of present petition, for the following substantive relief:

“The present petition may kindly be allowed summoning order dated 6.5.2023 (Annexure P-3), whereby the learned Chief Judicial Magistrate, Mandi, H.P. had taken cognizance and notice of accusation dated 17.6.2024, (P-4) against the petitioner in complaint case No: NI Act 15-III/2023 titled as Gopal Krishan versus Gursev Singh may kindly be ordered to be quashed, in the interest of justice and fair play.”

5. Relief of quashing has mainly been sought on the ground that complainant had filed the complaint, a