The legal point established is the vicarious liability of a person in charge of a company under Section 141 of the Negotiable Instrument Act and the admissibility of evidence on affidavit under Section 145.

By way of this application U/s 482 Cr. P. C. the petitioner has sought the re lief for quashing the impugned summon ing order dated 18-07-2005 passed by J. M. Roorkee, in complaint case No. 1392/ 2005, Dr. Subodh Gupta Vs. P. C. Jain, U/s 138 of Negotiable Instrument Act. The petitioner has also prayed for quash ing the aforesaid entire complaint case.

2. Brief facts of the case are that respondent No. 3 Dr. Subodh Gupta filed a complaint against the petitioner U/s 138 of the Negotiable Instrument Act on 12-7-2005 before the Court of Judicial Magistrate, Roorkee. The complainant in support of his case also filed his state ments on an affidavit U/s 200 Cr. P. C. The case of the complainant was that after repeated requests made by the complainant for the return of the money amounting to Rs. 5,00,500/-, which was taken by the petitioner/accused Prem Chand Jain as loan, a cheque was given to the complainant, but the same was dishonoured. The complainant thereaf ter issued the notice to the accused/pe titioner but the accused did not pay back the amount which was taken by him as loan. The complainant has also taken the plea that the liability to make the payment was with the accused/peti tioner being the proprietor as well as the incharge of the business of the company.

3. The learned court after having considered the material available on record issued the summoning order against the accused/petitioner on 18-7-2005.

4. Feeling aggrieved by the aforesaid summoning order the petitioner has filed the petition before this Court.

5. The respondent No. 3 has filed the counter affidavit refuting the facts mentioned in the petition. The respond ent No. 3 also filed the supplementary counter affidavit. Thereafter the peti tioner has filed the rejoinder affidavit.

6. Heard learned counsel for the parties and perused the record.

7. Learned counsel for the petitioner has firstly argued that the statutory require ment contained in Section 141 of the Ne gotiable Instrument Act has not been complied with. By reason of the said provision a person although is not personally liable for commission of such offence, would be vicariously liable therefor and such vicari ous liability can be inferred so far as the Company is registered or incorporated un der the Companies Act. It has been sub mitted that the complaint in the case dem onstrates that it has nowhere been stated that the petitioner was incharge of the business of the company.

8. 1 fail to appreciate the argument ad vanced by the learned counsel for the peti tioner. The specific averment has been made in paragraph-5 of the complaint that the applicant/accused had the liability to pay back the amount being proprietor and incharge of the business of the firm. It would be further worthy to note here that the pe titioner in paragraph-9 of his petition has him self stated that he has returned a sum of Rs. 4,25,0007- by cheque and rest of the "amount has been paid in cash, though this averment has been emphatically denied by the complainant, respondent No. 3 in his counter affidavit. However, this specific averment made by the petitioner in his pe tition clearly shows that the petitioner him self has admitted the I liability to pay back the amount taken by him as loan from the complainant.

9. Learned counsel for the petitioner has further argued that the learned Mag istrate before issuing the process was duty-bound to examine on oath the complain ant and his witnesses. In support of his submission the learned counsel for the pe titioner has cited before me the cases Ma haraja Developers

& Anr. Vs. Udaysingh Pratapsinghrao Bhonsle & Anr. reported in 2007 CRI. L. J. 2207 (Bombay High Court) and Sabitha Ramamurthy and an other Vs. R. B. S. Channabasavaradhya re ported in (2007) 1 Supreme Court Cases (Cri) 621.

10. I have gone through the judg ments cited before me and I am of the view that both the judgments are not ap plicable to the facts and circumstances of the present case.

11. There is a specific

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