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IN THE HIGH COURT OF ALLAHABAD
UMESH CHANDRA SHARMA, J.
Pawan Garg - Applicant
Versus
State of U.P. and Another - Opposite Parties
Application U/S 482 No. 28748 of 2022
Decided On : 18-04-2023
Negotiable instrument Act,1881 –Section 138 – Indian Penal Code,1860 - Offence of Cheque dishonoured - Cheating – Summoned - Complainant used to make regular demand of arrears amount/money, for which no attention was paid by opposite party, but lastly they provided a Cheque No. 088797 dated , for an amount of Rs.3,00,000/- getting its signed by opposite party no. 3, but when it was produced in his P.N.B Branch, same was dishonoured with the endorsement exceed arrangement - Opposite party had provided cheque of an account from which no payment was possible, they had given cheque intentionally to deceit the complainant - In the Tax Invoice e-way Bill GST documents produced by opposite party no. 2 shows that there is no whisper of name of the applicant as a Proprietor, Director, Owner or otherwise of the firm Aircon - Gallery. [Para 7]
Finding of the Court: impugned cheque had been issued by, opposite party no. 3, sole proprietor of opposite party no. 1 of the complaint - There is no paper to establish that the applicant is authorized signatory, agent or co-proprietor of the Firm - In the eye of law, wife and husband have separate entity - It is also not a case that the wife, sole proprietor of Firm had provided the cheque signed by or on behalf of the applicant - Applicant cannot be summoned as accused under Section 138 of the NI Act and the summoning order in respect of the applicant is bad in law in light of the above facts and circumstances of the case.
Result: application under section 482 Cr.P.C is allowed
JUDGMENT :
1. Heard Sri Shyam Shankar Mishra, learned counsel for the applicant, Sri Pankaj Tripathi, learned A.G.A. for the State and perused the record.
2. This application has been filed by the application to quash the entire criminal proceedings in Criminal Complaint Case No. 12120 of 2020 - R & S Air Conditioning Vs. M/s Aircon Gallery, under Section 138 N.I. Act, pending in the Court of Civil Judge (Junior Division), F.T.C. / Judicial Magistrate, Ghaziabad.
3. In brief, facts of the case are that opposite party no. 2 instituted a complaint under Section 138 of the N.I. Act, against the applicant and his wife Smt. Kajal Garg and M/s Aircan Galary through it's Proprietor Smt. Kajal Garg (wife of the applicant), stating that opposite party no. 3 Smt. Kajal Garg is the proprietor of partnership firm of opposite party no. 1, and opposite party no. 2 is Manager / recognized person, main officer. Opposite Party Nos. 2 and 3 are regulating the firm together, which is involved in installation, fitting of ducting and fabrication work. There have been business relations between Sachin Sharma, the proprietor of the complainant firm and opposite party no. 2 Sri Pawan Garg. There has been mutual faith between both of them. Opposite party had given an oral work order in the month of August, 2019 to the complainant for the ducting site fabrication and A.C. Installation work along-with the dactable A.C. Machine for an amount of Rs.10,03,189.00/- out of which Rs.5,45,189.00- was an arrears upon the opposite party.
4. The complainant used to make regular demand of arrears amount/money, for which no attention was paid by the opposite party, but lastly they provided a Cheque No. 088797 dated 31.08.2020, for an amount of Rs.3,00,000/- getting its signed by opposite party no. 3, but when it was produced on 01.09.2020 in his P.N.B Branch Govind Puram, Ghaziabad, the same was dishonoured with the endorsement exceed arrangement. The opposite party had provided the cheque of an account from which no payment was possible, they had given the cheque intentionally to deceit the complainant.
5. On 16.09.2020 a notice dated 16.09.2020 was sent to the opposite party on 17.09.2020, which was received by them on 26.09.2020, but they did not pay the amount. Even after 15 days upto 10.10.2020, hence the act of the opposite party attracts Section 420 I.P.C and Section 138 of the N.I. Act. Hence, the opposite parties be summoned for the trial in aforesaid sections.
6. On 12.08.2021, the applicant Pawan Garg and Smt. Kajal Garg were summoned by the concerned court as proprietor under Section 138 of the N.I. Act.
7. In brief, the grounds of this application are that the cheque was issued by the firm namely M/s Aircon Gallery through its' proprietor Smt. Kajal Garg. In the Tax Invoice e-way Bill GST documents produced by the opposite party no. 2 shows that there is no whisper of the name of the applicant as a Proprietor, Director, Owner or otherwise of the firm Aircon - Gallery.
8. In fact, the applicant has no concern with the aforesaid firm. It is a proprietorship firm run by single proprietor Smt. Kajal Garg, which is evident from Annexure No. 5, the photocopy of the registration certificate issued by the Government of India. The applicant has no concern with the aforesaid firm and he has been arrayed in the complaint with mala-fide intention to mount pressure for recovery of money being husband of Smt. Kajal Garg, proprietor of the aforesaid firm. The applicant has no business concern with the aforesaid firm and works separately as Sales Agent in grain market.
9. The learned courts below was totally failed in considering material available on record and has mechanically summoned the applicant under Section 138 of the N.I. Act along with Smt. Kajal Garg.
10. The impugned order is arbitrarily, unjust, illegal and is not sustainable in the eye of law. The applicant has no concern with the aforesaid firm by legal and practical aspects. The courts below could not examine th
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