HIGH COURT OF JAMMU AND KASHMIR

AT JAMMU

Reserved on 07.07.2021

Pronounced on 28.07.2021

CRMC No. 134/2012

Vishal Kanodia

...Petitioner/Applicant(s)

Through :-

Mr. Pranav Kohli, Sr. Advocate with

Mr. Sachin Dev Singh, Advocate

v/s

<

Surinder Pal Singh and another

.....Respondent (s)

't

Through :-

Mr. Sandeep Singh, Advocate

Coram: HON’BLE MR. JUSTICE RAJNESH OSWAL, JUDGE

JUDGMENT

1.

The present petition has been filed by the petitioner under section 561-

A Cr.P.C. (now 482 Cr.P.C.) for quashing the complaint filed against

him under section 138 of the Negotiable Instruments Act, 1881 (for

short the Act) as well as the order dated 31.03.2010 passed by the

learned Sub Registrar, Jammu (hereinafter to be referred as the trial

court) on the following grounds:

(i)

That the petitioner has not issued the cheque in question and any

liability arising out of the same cannot be fastened upon the

petitioner.

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CRMC No. 134/2012

(ii)

That M/s Ultra Tuff Cement is a proprietorship concern of Mr.

Deepak Savergi, that maintains the account with the Punjab

National Bank, Durga Nagar, Jammu.

(iii) That

at

the

time

of

inception

of

the

business,

complainant/respondent executed a rent agreement with M/s

Ultra Tuff Cement through its proprietor, Mr. Deepak Savergi,

in which it is clearly mentioned that M/s Ultra Tuff Cement is

proprietorship concern and the petitioner has no role in the same.

(iv)

That perusal of the complaint as well as the order dated

31.03.2010 reveals that nothing has been clearly established

against the petitioner and the learned trial court too has not

recorded any reason as to in what circumstances, the process has

been issued against the petitioner.

2.

Mr. Pranav Kohli, learned senior counsel representing the petitioner

submitted that the petitioner has been unnecessarily arrayed as a party

as the petitioner has not issued any cheque in favour of the

complainant. In support of his submissions, Mr. Kohli has placed

reliance on the judgments of the Supreme Court in S. M. S.

Pharmaceuticals Ltd. v Neeta Bhalla, (2005) 8 SCC 89 and Raghu

Lakshminarayan v Fine Tubes, (2007) AIR (SC) 1634 as also the

judgment of this Court, titled, Neena Mahendru v/s M/s Pal

Infrastructure Solutions, 2015(2) JKJ 51 (HC).

3.

Mr. Sandeep Singh, learned counsel appearing for the respondent No. 1

submitted that the petitioner has committed an offence within the

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CRMC No. 134/2012

meaning of section 138 of the Act and the grounds raised in this

petition are the disputed questions of facts, those cannot be looked into

by this Court while exercising inherent power under section 561-A

Cr.P.C (now 482).

4.

Heard learned counsel for the parties and perused the record.

5.

A perusal of the complaint reveals that in the complaint, 8M/s Ultra

Tuff Cement9 through its Managing Partner, Deepak Sawargi, has been

arrayed as one of the accused and the petitioner and Goutam Kanodia

have been shown as proprietors of M/s Ultra Tuff Cement. A perusal of

the cheque also reveals that it bears stamp impression of <M/s Ultra

Tuff Cement prop.= with signatures but not that of the petitioner.

Further the petitioner has placed on record the certificate issued by the

Bank concerned that the account on which the cheque was drawn is the

proprietorship concern. The contesting respondent has not been able to

dispute the said assertion and has not been able to demonstrate that the

account in question belonged to partnership concern, with the

petitioner as one of the partners. It is evident that the complainant

himself is not sure as to whether M/s Ultra Tuff Cement is a

proprietorship concern or the partnership concern. A business concern

cannot be a proprietorship conc