2012 (5) TMI 288 - HC - Companies Law

Section 138 of the Negotiable Instruments Act, - Dishonour of cheque - cheque was drawn by respondent No. 3, Mr. Ravi Gupta in his capacity as a partner of M/s Sunlit Securities - The firm has not been impleaded by the complainant - Held that - respondent No. 1/complainant has also not been able to indicate from the record that any specific amount was mentioned as having been received from respondent No. 3 (Accused No. 2) for dropping him from the case. cheque in question was issued by the respondent No. 3 (Accused No. 2), who respondent No. 1/complainant has decided not to prosecute, on account of his having received some undisclosed amount from the said respondent, respondent No. 1/complainant now cannot be permitted to continue prosecuting the complaint against the petitioner alone, more so when there was no specific allegation levelled in the complaint against her. complaint filed by respondent No. 1/complainant against the petitioner is not maintainable. petition is allowed

Summary

Issues:
Petition under section 397/401 read with section 482 of the Cr.Pc for quashing the complaint under section 138/141 of the Negotiable Instruments Act and setting aside the orders issued by the Metropolitan Magistrate.

Analysis:
The petitioner argued that the complaint against accused No. 4 was not maintainable as the cheque in question was issued by a different party, not impleaded in the case. The petitioner was wrongly described as a partner of M/s Sunlit Financial Services, a private limited company, when she was not associated with it. The complainant failed to disclose the consideration for the cheque or the role of the petitioner in the complaint. The petitioner's application for discharge was rejected, and the settlement between the complainant and another accused was not considered by the Magistrate.

The complainant contended that the cheque was related to M/s Sunlit Securities, not M/s Sunlit Financial Services, as claimed by the petitioner. However, the partnership deed indicated that the business was conducted under the name of M/s Sunlit Securities. The complainant's decision to prosecute only the petitioner without revealing the settlement details with the other accused raised questions about the maintainability of the complaint.

The court noted several contradictions in the complaint, especially regarding the entity that issued the cheque and the lack of specific allegations against the petitioner. As per the Negotiable Instruments Act, the complainant should have impleaded the party who drew the cheque, which was not done in this case. Since the complainant had settled with one accused and decided not to proceed against another, prosecuting only the petitioner without disclosing settlement details was deemed unjust. Consequently, the court held the complaint against the petitioner as not maintainable and quashed the complaint and related orders issued by the Metropolitan Magistrate.