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TMI Blog2022 (4) TMI 762X X X X Extracts X X X X X X X X Extracts X X X X ..... plicant no.1 partnership firm. It is not in dispute that the disputed cheques have been issued by the partnership firm and as per the provision contained in Section 141 of the NI Act, every person who, at the time the offence was committed, was in charge of and was responsible to the firm for the conduct of the business of the firm, shall be deemed to be guilty of the offence and shall be liable to be proceeded against under the provision of Section 138 of the NI Act. This Court is not inclined to exercise the powers under Section 482 of the Code in favour of the present applicants - Application dismissed. - R/Criminal Misc.Application No. 4031 of 2022 - - - Dated:- 22-3-2022 - Honourable Mr. Justice Vipul M. Pancholi For the Applicant(s) : Mr Chaitanya S Joshi For the Respondent(s) : Mr Rb Raval App ORAL ORDER 1. This application is filed by the applicants under Section 482 of the Criminal Procedure Code, 1973 (hereinafter referred to as the Code for short) for quashing and setting aside the complaint being Criminal Case No.1685/2021 filed by the respondent no.2 complainant. 2. Heard learned advocate, Mr. Chaitanya Joshi for the applicants and le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a facie the ingredients of the alleged offences are made out and, therefore, this Court may not exercise the powers under Section 482 of the Code in favour of the present applicants. It is further submitted that the complainant has made specific allegations against all the accused in the impugned complaint. It is submitted that the accused no.1/ applicant no.1 is a partnership firm and the applicant nos.2 and 3 are the partners of the said partnership firm, therefore, though the applicant no.3 has not signed the disputed cheques, she can be joined as accused in view of the provision contained in Section 141 of the NI Act. 7. Learned APP thereafter submitted that even if the cheques are given by way of security, the provision of Section 138 of the NI Act would be attracted and the conditions stipulated in the said provision are fulfilled. Learned APP therefore urged that this application be dismissed. 8. Having heard learned advocates appearing for the parties and having gone through the material placed on record, it would emerge that the respondent no.2 has filed the impugned complaint under Section 138 of the NI Act against the present applicants. The applicant no.1 is a par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - (Rs. Six Lakhs Only) for the personal needs/friendly loan as the accused was facing some financial crises. On the accused's request the complainant gave you a sum of ₹ 6,00,000/- (Rs. Six Lakhs Only) through cheque no.340787 drawn on Punjab National Bank, Lawrence Road Branch, to the accused no.2 as friendly loan. The said cheque was issued in favour of noticee no.1 and was debited in the account of the complainant on 01-02-2002. 3. That thereafter the complainant waited for some time as the accused had promised to repay the friendly loan after six months but he failed to do so. After considerable persuasion from the complainant the accused no.2 in lieu of the above mentioned friendly loan, issued two cheques bearing no.817758 dated 27-04-2006 and another bearing no.817760 dated 31-05- 2006 each for a sum of ₹ 50,000/- (Fifty Thousand Only) each, each drawn on Bank of India Rajendra Place Delhi, Branch in favour of the complainant towards the part payment against the outstanding dues towards the accused. The said cheques were however enchased on presentation. [4] That thereafter the complainant again waited for some time and after considerable persuasion fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Bombay High Court is also not applicable to the present case. 11. Learned advocate for the applicants contended that the disputed cheques were given by way of security in the year 2016 and, therefore, the provision of Section 138 of the NI Act would not be attracted. However at this stage, this Court would like to refer to the decision rendered by this Court in case of Machine Product Tradelink Pvt. Ltd Anr. Vs. Utpal Bhupendra Raiji Anr., reported in 2012 (1) GLH 218, wherein this Court has considered similarly contentions raised by the present applicants and, thereafter observed in Paragraph Nos.7, 10, 11 and 12 as under, 7. In the present case, it is not in dispute that the cheque in question was given to the complainant under the MOU dated 11.10.2001 at the time when the complainant retired as a Director. It appears that at the relevant time when the cheque was issued number of other cheques were also issued in favour of other persons (as mentioned in the said MOU) and on settlement of the account. However, at the relevant time the company was not having any fund and therefore, the post dated cheque was issued and one of the cheque was in favour of the original ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case of Sudhir-Kumar Bhalla (supra) relied upon by the learned Advocate for the petitioners shall not applicable to the facts of the present case. It is also required to be noted that even the case before the Hon'ble Supreme Court was after the trial and in the said decision also there is no absolute proposition of law laid down by the Hon'ble Supreme Court that even in case where the post dated cheque is given by way of security for ascertained amount and on settlement of the account and the said cheque is dishonoured, as sought to be contended on behalf of the petitioners. 12. Now, so far as the contention on behalf of the petitioner that in the complaint the complainant has not stated nothing with respect to the MOU and therefore, there is a suppression of material facts and therefore, the impugned complaint required to be quashed and set aside is concerned, the same has no substance at all. Non mentioning of MOU in the complaint is not so fatal for which the impugned complaint required to be quashed and set aside. It is to be noted that the impugned complaint is filed for offence under Sec. 138 of the N.I. Act and therefore, complainant was required to mention onl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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