208 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM-M-2580-2023 (O&M) Date of decision: 13.01.2025 Harjeet Singh ... Petitioner Vs.

Om Metals ... Respondent CORAM: HON'BLE MR. JUSTICE HARPREET SINGH BRAR Present: Mr. Manmohan Saroop, Advocate and Ms. Meenakshi Saroop, Advocate for the petitioner.

Mr. Rajinder Kumar Singla, Advocate for the respondent.

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HARPREET SINGH BRAR, J. (ORAL)

1. Present petition has been filed under Section 482 of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’) seeking quashing of the order dated 18.09.2018 (Annexure P-2) passed by learned Judicial Magistrate 1^st Class, Panchkula, in Criminal Complaint No.NACT/852/2018 dated 24.07.2018 under Sections 1368 & 141 of the Negotiable Instruments Act, 1881 (for short ‘NI Act’), titled as ‘Om Metals Vs. CH Waterwell Engineers and Consultants and others’, vide which the petitioner has been summoned to face the trial and for quashing of the complaint (supra) along with all the subsequent proceedings arising therefrom.

2. Learned counsel for the petitioner, inter alia, contends that perusal of the complaint (supra) (Annexure P-1) indicates that the petitioner has been implicated as accused No.3. Admittedly, as per case set up by the respondent, liability to discharge the legally enforceable debt was upon CH Waterwell Engineers & Consultants and the petitioner has no concern with the said proprietorship firm. The petitioner is neither employed nor partner of CH Waterwell Engineers & Consultants. Learned counsel refers to Udyog Aadhaar Registration Certificate issued by Ministry of Micro, Small and Medium Enterprises, Govt. of India (Annexure P-5) and Certificate of Provisional Registration under GSTIN (Annexure P-6) and perusal of the same clearly indicates that proprietorship concern is registered in the name of one Manpreet Singh and the petitioner has been falsely implicated only for the reason that he is brother of aforesaid Manpreet Singh and he has no outstanding liability towards the complainant-respondent. The petitioner has been made an accused without any basis. As such, necessary ingredients to breach the threshold of Section 138 of NI Act are not available and only the drawer of the cheque is liable for action as per provisions of NI Act. The complainant-respondent failed to produce any document or partnership deed etc. before learned trial Court to prove any connection of the petitioner with the proprietorship concern.

3. Per contra, learned counsel for the respondent-complainant opposes the prayer made by the petitioner on the ground that the petitioner is real brother of Manpreet Singh and he is managing the day to day affairs of CH Waterwell Engineers & Consultants. However, he could not controvert the fact that the cheque in question was issued in the name of proprietorship concern and signed by Manpreet Singh.

4. Having heard learned counsel for the parties at length and after going through the material available on record and also considering the averments and allegations made in the complaint (supra), it emerges that the dishonoured cheque was issued by Manpreet Singh and it was drawn from the bank account of proprietorship concern. The dishonoured cheque was signed by co-accused Manpreet Singh. The petitioner herein is neither signatory to the cheque in question nor it was drawn from his bank account. The account in question relates to proprietorship concern and Manpreet Singh, as per Certificate of Provisional Registration under GSTIN (Annexure P-6), is the sole proprietor and as such, only Manpreet Singh can be prosecuted for the offence punishable under Section 138 read with Section 141 of NI Act.

5. On fair reading of Section 138 of NI Act, before a person can be prosecuted, following conditions are required to be satisfied: -

(i) The cheque is drawn by a person and on an account maintained by him with a banker.

(ii) The cheque in question pertains to any account with regard to discharge of any debt or other liability, i