1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL WRIT PETITION NO.427 OF 2008. Sachin S/o Vishwanathrao Dongalikar ... Petitioner. Versus Vijaysingh S/o Basantsingh Khalsa and others ... Respondents. ... Mr.A.I.Deshmukh, advocate holding for Mr.B.G.Deshmukh, advocate for the petitioner. Mr.Vijay Sharma, advocate for the Respondent No. 1. ... CORAM : V.R.KINGAONKAR,J. Date : 16.09.2009. PER COURT 1. Heard. 2. The petitioner is original accused No. 2. The Criminal complaint was lodged against his elder brother and mother for the offence U/s 138 2 of the N.I.Act, as well as U/ss 420 read with 34 of the I.P.Code. The Respondent No.1 is the original complainant. He alleged that the applicant and his elder brother i.e. original accused No.l agreed to alienate a house property to them for consideration of Rs.3,50,000/- (Rupees three lacs fifty thousand). He paid them Rs.2,00,000/- (Rupees two lacs) by way of earnest money on 29.11.2001. The sale-deed was to be executed by end of January 2002. However, both of them expressed inability, when contacted in the month of January 2002, to execute the sale deed on the ground that the house property was recorded in the name of their and she was not ready to execute the sale deed. They agreed to repay the earnest amount when the complainant insisted for such payment. Allegedly, a cheque for Rs.2,00,000/- (Rupees two lacs) was issued by the original accused No.1 on 1.2.2002. It dishonoured when presented to the Bank. Thereafter, the Criminal complaint was filed in the Court when the demand notice was not complied with. 3 3. The argument of the learned counsel for the petitioner is that he is not at all liable to be prosecuted for offence U/s 138 of the N.I.Act. He contended that process could not have been issued against him for such offence. The clinching question is whether the petitioner can claim outright discharge at the premature stage only because he is not the signatory of the cheque in question. The learned Sessions Judge, while deciding Criminal Revision No.145/2006, came to the conclusion that the expression "Company" as defined in Section 141 of the N.I.Act, will have to be considered at the time of final decision of the Criminal complaint. The fact that the liability to repay the amount was jointly shouldered by the applicant and his elder brother (accused No.1) is manifestly clear on prima facie consideration of the allegations made in the complaint. Needless to say, the cheque was issued in discharge of such joint liability to pay the amount. That was not the individual liability of the original accused No.l and, therefore, prima facie the applicant can not disassociate himself from the legal 4 debt/liability to pay the amount shown under the cheque. The expression "Company" or "association of individuals" as used in Section 141 of the N.I.Act, is elastic and will have to be interpreted on the basis of peculiar set of circumstances and the facts obtained in a particular case. The necessary corollary of this legal position is that the complaint can not be dismissed against the present applicant only because he is not a signatory of the cheque in question. Secondly, there is also charge for offence of cheating which prima facie is disclosed from the allegations made in the complaint. The learned Magistrate will be required to decide the matter on merits. The issuance of process can not be faulted at the present without going to the trial. The premature decision on such a question would result in abortive decision without proper opportunity of the hearing and, therefore, I am not inclined to entertain the petition. The petition also involves disputed questions of facts. For these reasons, the petition is dismissed. 5 4. The observations in this order be not considered while deciding the Criminal case. (V.R.KINGAONKAR,J.) asp/office/Crwp42708