IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. Application No. 499 of 2006 1- Moti Lal Verma S/o late Dhannu 2- Santosh Verma S/o Moti Lal Verma, Both R/o 109/364 Chuna Bhatia Ram Krishna Nagar, Kanpur U.P. .. Petitioners. Versus 1- State of Uttaranchal 2- Special Judicial Magistrate- II, Dehradun. 3- Sunil Kumar Gupta S/o Late Vigyan Prakash R/o G-37, Race Course, Dehradun District Dehradun .. Respondents. Sri Navneet Kaushik, Learned counsel for the petitioners. Sri S.K. Jain, learned counsel for the respondent No.3. Dated: February 14, 2008 Hon’ble B.C. Kandpal, J. By way of this petition, U/S 482 of the Cr.P.C. the petitioners have prayed for quashing of the summoning order dated 18-7-2005, U/S 138 of the Negotiable Instruments Act, passed by Special Judicial Magistrate-II, Dehradun in criminal case No. 396 of 2005, Sunil Kumar Vs. M/S Santosh Paints. 2- Brief facts of the case giving rise to this petition are that the respondent No.3 filed a complaint against the petitioners and one Devender Kumar before the Chief Judicial Magistrate, Dehradun with the allegations that petitioners No. 1 Moti Lal Verma is the proprietor, petitioner No.2 Santosh Verma is the Manager and co-accused Davinder Kumar is the Agent of M/S Santosh Paints (India), Jawahar Nagar Kanpur. The petitioners and the co-accused Devender obtained supplies of lime for the Firm from complainant/respondent No.3 on credit. Towards part payment of the amount of the said supplies, the proprietor and Manager delivered a cheque dated 12-12- 2004, amounting to Rs. 50,000/- which was signed by the Agent Devender Kumar. When the cheque was presented before the Bank, the same was dishonoured. Notice was issued by the complainant but the same was not accepted by the petitioners and the said notice was returned as unclaimed. In spite of knowledge/service of the notice the petitioners did not make payment of the said cheque. The learned Special Judicial Magistrate-II Dehradun vide impugned order dated 18-7-2005 summoned the accused/petitioners as well as the co- accused Devender Kumar to face trial U/S 138 of the Negotiable Instruments Act. 3- The petitioners have preferred this petition for quashing of the impugned summoning order on the ground that in the year 2000 the applicants stopped their business transaction pertaining to the petitioner/Firm. The respondent No.3 in collusion with one Mr. Devender Kumar, has instituted this false case against the petitioners. The petitioners have denied that Devender Kumar was their Agent. It has also been alleged that the petitioners have nothing to do with the said Devender Kumar and they cannot be held liable for the dishonourment of the cheque issued by Devender Kumar. 4- The respondent No.3 filed counter affidavit denying the allegations made in the petition and averred that Devender Kumar is the Agent of the Firm of the petitioners and was completely involved in the business of the Firm. The impugned cheque was signed by Devender Kumar being the Agent of the Firm and the petitioners have rightly been summoned to face trial U/S 138 of the Negotiable Instruments Act. 5- Heard Sri Navneet Kaushik, learned counsel for the petitioners and Sri S.K. Jain, learned counsel for the respondent No. 3 and perused the record. 6- Learned counsel for the petitioners has submitted that the petitioner cannot be held liable for the act done by co-accused Devender Kumar in his individual capacity. He has further submitted that there is no iota of evidence that Devender Kumar has issued the cheque on behalf of the Firm therefore with the aid of Section 141 of the Negotiable Instruments Act the petitioners could not have been summoned. He has further submitted that initially Devender Kumar was summoned and subsequently with the aid of Section 141 of the Negotiable Instruments Act the petitioners have also been summoned to face the trial. 7- The averments made in the complaint show that the petitioners No.1 and 2 along with Devender Kumar is a Firm. The petitioner No.1 is the proprietor, while petitioner No.2 is the Manager and Devender Kumar is the Agent of the Firm. Paragraph No.12 of the counter affidavit filed by the respondent No.3 shows that Devender Kumar had been acting in the capacity of an Agent of the firm. 8- The explanation of Section 141 of the Negotiable Instruments Act shows that the ‘Company’ means- ‘a’ body corporate and includes a firm or other association of individuals’. Therefore, in case if Devender Kumar has issued the cheque pertaining to the business transaction of the Firm with the consent of the petitioners, who are the proprietor and manager of the Firm, then certainly the petitioners would also be held liable for committing the offence U/S 138 of the Negotiable Instruments Act. 9- The another aspect of the argument advanced by the learned counsel for the petitioners that Devender Kumar had issued the cheque in his personal capacity and not on behalf of the Firm, is a subject matter of the evidence. The petitioners will have an opportunity before the trial court to adduce evidence on this aspect and on the aspect that Devender Kumar has no concern with the Firm and he issued the cheque in his personal capacity and not on behalf of the Firm. At this stage any inquiry on this aspect, by me, would amount to pre-trial of the matter. I am not supposed to embark upon an inquiry with regard to the credibility of the evidence, where the evidence is yet to be adduced by the parties. I do not find any illegality and impropriety in the impugned summoning order. 10- For the reasons aforesaid, the petition lacks merit and is liable to be dismissed. 11- Accordingly the petition is dismissed. The interim stay order dated 6-7-2006 stands vacated. (B.C. Kandpal, J.) ISB