Vicarious liability under Section 141 of the N.I. Act arises only when the company or firm commits the offense as the primary offender, and the accused must be the drawer of the cheque to be held liable under Section 138.

JUDGMENT :

1. Heard Mr. Umesh Prasad Singh, the learned Senior counsel appearing on behalf of the petitioners, Mr. R.S.Mazumdar, the learned Senior counsel assisted by Mr. Vikash Kumar, the learned vice counsel appearing on behalf of the O.P.No.2 and Mr. Rajneesh Vardhan, the learned counsel appearing on behalf of the respondent State.

2. In both the petitions, a common question of fact and law are involved and that is why both the petitions are being heard together with the consent of the parties.

3. These petitions have been filed for quashing of the entire criminal proceeding arising in connection with complaint case bearing C.C.No.110/2016 and the order taking cognizance dated 05.12.2016 passed Judicial Magistrate, 1st Class, Rajmahal and pending in that learned court in Cr.M.P. No. 2183 of 2017; and for quashing of the entire criminal proceeding arising out of and in connection with complaint case being C.C.No.178 of 2016 presently pending in the court of learned Sub Divisional Judicial Magistrate, Sahibganj as also to quash the order dated 22.09.2016 passed by learned Sub Divisional Judicial Magistrate, Sahibganj in Complaint Case being C.C.No.178 of 2016 whereby under section 138 of N.I.Act, the concerned court directed to issue summons to the petitioner in Cr.M.P. No. 2190 of 2017.

4. The facts of the case in Cr.M.P. No.2183 of 2017 are as follow:

The O.P.No.2 has filed the instant complaint case alleging therein that the opposite party no.2 being the complainant filed the criminal complaint being Complaint Case No.110/2016 alleging therein that complainant is the owner of ‘Vikash Vishal Urja Kendra’ situated at Barhait and is dealing with stone chips and petrol pump at Barhait. It has been stated that the accused is a reputed construction company got the work of construction of road from Dharampur more to Sunderpahari between Godda to Pakur District. The accused persons allegedly approached the complainant and requested some financial and material assistance. On the agreed terms of the agreement, the accused started lifting the chips and diesel with assurance that when payment will come he will return the amount. The accused persons found it difficult to continue with the work and asked the complainant for some financial support and the complainant transferred money in the account of the accused. In the month of September, 2015 when the work was about to finish and the accused started getting money from the concerned department, the accused started demanding money from the accused. The accused person issued one cheque worth Rs.10 Lakhs bearing no.128768 drawn on State Bank of India. The cheque was deposited by the complainant in her account, however, it returned by the Bank on 19.11.2015 on the ground of insufficient fund in the account of the accused. The complainant served a legal notice to the accused through her lawyer on 18.12.2015, and the accused assured through negotiation that he will pay the money but nothing has been paid. It is alleged that the accused knowing it well that there is no sufficient fund in the account still issued the cheque and made himself liable u/s 138 of N.I.Act.

5. The facts of the case in Cr.M.P. No. 2190 of 2017 are as follow:

The O.P.No.2 has filed the instant complaint case alleging therein that the opposite party no.2 being the complainant filed the criminal complaint being Complaint Caes No.178/2016 alleging therein that the complainant is the owner of ‘Vikash Vishal Urja Kendra’ situated at Barhait and is dealing with stone chips and petrol pump at Barhait. It has been stated that the accused is a reputed construction company got the work of construction of road from Dharampur More to Sunderpahari between Godda to Pakur District. The accused persons allegedly approached the complainant and requested some financial and material assistance. On the agreed terms of the agreement, the accused started lifting the chips and diesel with assurance that when payment will come he will return the