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TMI Blog2018 (11) TMI 1301X X X X Extracts X X X X X X X X Extracts X X X X ..... be made accountable under Section 142 of the Seciton138 Negotiable Instrument Act, 1881 (as amended) and not someone else - in present case, in view of the re-verification report of the Bank of Baroda verifying the signatures of the account holder thereof as visible on annexure P-6 as being of Ms. Taruna Kingrani and there being no signatures of the petitioner on the same it is apparent that the proceedings under Section 138 read with Section 142 of the Negotiable Instruments Act, 1881 (as amended) in Complaint No. 04/4R/16 to that extent cannot be continued. The summoning order dated 29.5.2015 as had been issued by the then Metropolitan Magistrate Seciton 138 Negotiable Instruments Act, bearing No. 17733/15 and now bearing No.4/4R/2016 as pending in the Ld. Court of MM(NW) cannot continue and is thus set aside - petition allowed - decided in favor of petitioner. - Crl.M.C.No. 1808/2016 & CRL. M.A. 7671/2016 - - - Dated:- 19-11-2018 - MS. ANU MALHOTRA J. Petitioner Through: Mr. Vivek B. Saharya, Advocate Respondent Through: Mr. Sitab Ali Chaudhary, Adv JUDGMENT ANU MALHOTRA, J. 1. The petitioner vide this petition under Section 482 of the Code of Cri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lty cooperated with the petitioner herein allegedly and a Cancellation Deed was executed in respect of the agreement dated 12.12.2013 by the petitioner and his wife and the petitioner returned the entire consideration amount of ₹ 5,00,000/- to the complainant, which was duly acknowledged by the complainant but the petitioner and his wife despite repeated demands and requests made by the complainant did not return the amount of ₹ 6 lacs against the second agreement which was executed by the petitioner and his wife for a sum of ₹ 6,00,000/- as per the agreement dated 30.12.2013 which amount as per the complainant (i.e. the respondent herein) is still due against the petitioner and his wife. 5. The complainant (i.e. the respondent to the present petition) in his complaint under Section 138 read with Section 142 Section 138 of the Negotiable Instrument Act, 1881 (as amended) read with Section 420 of the Indian Penal Code, 1860, further submitted that in the middle of March, 2015 the complainant personally visited the accused i.e. the petitioner herein and his wife, namely, Smt. Taruna and demanded a sum of ₹ 6,00,000/- which he had paid against the second a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . There are other submissions that the petitioner has made to the effect that the allegations levelled by the complainant are wholly false and it is further submitted that the agreement between the parties had been mutually terminated on 9.3.2015. There was thus an estoppel against the respondent i.e., the complainant qua his contention that the cheque was issued in discharge of a legally recoverable debt and that in fact the cheques had been issued in discharge of whole or a part of a liability towards mutation proceedings before the concerned authority and the same has been misused by the respondent and it was thus submitted through the petition that an offence punishable under Section 405 of the Indian Penal Code, 1860, against the defendant has been made out. 10. Through the submissions made on behalf of the respondent it has been denied that the allegations levelled against the petitioner are false and the respondent also denied that as per the mutual terms agreed between the parties after signing a cancellation agreement it had been agreed that the parties would not claim anything from each other against the party in question. The respondent also denied that the cheque in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier; (iv) that cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank; (v) the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; (vi) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice. Being cumulative, it is only when all the aforementioned ingredients are satisfied that the person who had drawn the cheque can be deemed to have committed an offence under Section 138 of the Act., considering the language used in Section 138 and taking note of background agreement pursuant to which a cheque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffence. It is true that the proviso to sub- section enables certain persons to prove that the offence was committed without their knowledge or that they had exercised all due diligence to prevent commission of the offence. The liability under Section 141 of the N.I. Act is sought to be fastened vicariously on a person connected with the company, the principal accused being the company itself. It is a departure from the rule in criminal law against vicarious liability. 19. .. 20 Mr. Mukul Rohtagi, learned senior counsel for respondent No.1, by drawing our attention to the definition of person in Section 3(42) of the General Clauses Act, 1897 submitted that in view of various circumstances mentioned, the appellant herein being wife, is liable for criminal prosecution. He also submitted that in view of the explanation in Section 141(2) of the N.I. Act, the appellant wife is being prosecuted as an association of individual. In our view, all the above contentions are unacceptable since it was never the case of respondent No.1 in the complaint filed before learned Magistrate that the appellant wife is being prosecuted as an association of individuals and, ther ..... X X X X Extracts X X X X X X X X Extracts X X X X
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