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TMI Blog2024 (7) TMI 1212X X X X Extracts X X X X X X X X Extracts X X X X ..... certificate of acknowledgement of registration from the Deputy Registrar of Firms. The said document nowhere shows the present petitioner as a partner in the said firm. Further, a perusal of the complaint would show that the cheque was issued on account of the firm and was signed by Sh. Hoshiyar Singh and not the present petitioner. There is no evidence on record to show that the petitioner was a partner of the firm or that he was the signatory of the cheque. In the absence of any such evidence to bring the petitioner within the fold of Section 138 r/w Section 141 NI Act, forcing the petitioner to stand trial solely on the basis of a bald averment, that too unsubstantiated, would amount to an abuse of the process of law. Considering the ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dishonoured due to insufficient fund/NPA account. Resultantly, the respondent issued legal notice dated 17.09.2019 to the accused company as well as the other accused persons, seeking repayment within 15 days. Upon their failure to repay the same, the present complaint came to be filed. In the complaint, it has been stated that accused No.1 is an unregistered firm wherein accused Nos.2 and 3 are the authorized signatory/proprietor/partner/deemed and real owner/official of the said accused. Consequent to the pre-summoning evidence, summons were directed to be issued against all the 3 accused including the present petitioner. 3. Learned counsel for the petitioner has challenged the summoning order as regards the petitioner by arguing that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciation of person and therefore, such an association can also be made liable under Section 138, with the assistance of Section 141 NI Act. 5. At this stage, it would be apposite to recapitulate the legal position involved in the present case. Prosecution under Section 138 NI Act requires the following conditions to be satisfied:- i) that the cheque is drawn by a person and on an account maintained by him with a banker for the payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability; ii) the said cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub-section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence: Provided further that where a person is nominated as a Director of a company by virtue of his holding any office or employment in the Central Government or State Government or a financial corporation owned or controlled by the Central Government or the State Government, as the case may be, he shall not be liable for prosecution under this Chapter. (2) Notwithstanding anything con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uced/placed on record to show that the petitioner is the deemed/real owner or that he was in charge or responsible for the business of the firm at the time of the commission of the offence. On the other hand, the petitioner has placed on record a certificate of acknowledgement of registration from the Deputy Registrar of Firms. The said document nowhere shows the present petitioner as a partner in the said firm. Further, a perusal of the complaint would show that the cheque was issued on account of the firm and was signed by Sh. Hoshiyar Singh and not the present petitioner. 10. In light of the facts discussed above, it can be seen that there is no evidence on record to show that the petitioner was a partner of the firm or that he was the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt and that he is really not concerned with the issuance of the cheque, he must in order to persuade the High Court to quash the process either furnish some sterling incontrovertible material or acceptable circumstances to substantiate his contention. He must make out a case that making him stand the trial would be an abuse of the process of Court. He cannot get the complaint quashed merely on the ground that apart from the basic averment no particulars are given in the complaint about his role, because ordinarily the basic averment would be sufficient to send him to trial and it could be argued that his further role could be brought out in the trial. Quashing of a complaint is a serious matter. Complaint cannot be quashed for the asking. F ..... X X X X Extracts X X X X X X X X Extracts X X X X
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