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 prudent consideration to the arguments advanced by the learned counsels appearing for the contending parties and have perused the materials available on record. I have also considered the citations submitted at the bar.

12. Apt to refer to the relevant portion of the complaint, which reads as hereunder:-

“1. That the complainant is a company incorporated under the companies Act, 1956 having its office at K.C.C. Road, Chatribari, Mahendra Singh Building, Ground Floor, Guwahati - 781008, P.S. - Paltan Bazar, District - Kamrup (Metro), Assam and the aforesaid company is a Bonded Warehouse dealing in supply IMFL (Indian Made Foreign Liquor). The accused No. 1 is a business firm under the name and style of JUNBELI DHABA represented by one Mr. Kamal Sarma i.e. accused No. 2 and while the accused No. 3 namely Seema Sarma is one of the authorised signatories of the JUNBELI DHABA. The accused and complainant has a business relationship and during the course of business transaction, the accused has accrued some liability of Rs.8,94,787/- (Rupees Eight Lakhs Ninty Four Thousand Seven Hundred Eighty Seven) only towards the complainant. The instant complaint is preferred by the Attorney Holder-cum-Manager, Sri Sukumar Chakraborty.

Photocopy Power Power Attorney is annexedherewith and marked as ANNEXURE - I.

2. That the accused No. 3, Seema Sarma i.e. authorised signatory of Junbeli Dhaba had issued a cheque vide Cheque No. 000005, dated 09.01.2017 for an amount of Rs.8,94,787/- (Rupees Eight Lakhs Ninty Four Thousand Seven Hundred Eighty Seven) only drawn on the HDFC Ban