·. #14 % 03.08.2011 Present: Mr.Vikas K. Chadha, Advocate with Mr. B.P. Singh Dhakray, Advocate & Mr. Shakti Singh Dhakray, Advocate for the petitioner. Ms. jasbir Singh, APP for the respondent No.1/State. Respondent No.2 in person with Mr. Mukesh Sharma, Advocate. +Cri.M.C. No.2077/2010 & Cri.M.A. No.8458/2011 Learned counsel for respondent No.2 submits that he has deposited the cost of imposed vide order dated 30.03.2011 with Delhi High Court Legal Services Committee. Receipt is taken on record. This is a petition under Section 482 Cr.P.C. filed on behalf of Sumit Gautam seeking setting aside of the impugned summoning order dated 04.02.2009 passed by learned Metropolitan Magistrate, District Court Patiala House in complaint case No.64/2009 under Section 138 N.l. Act and subsequent orders issuing processes against him and also quashing of the complaint qua him. Short point in this petition is that perusal of the complaint would show that the cheque in question which is the basis of the complaint under Section 138 N .I. Act was issued by Tarun Gautam, brother of the petitioner from his personal account and not by the petitioner or any company or firm of which the petitioner was director/partner or a person responsible for the management of day to day affairs of said firm or company. Therefore, the petitioner cannot be held liable for the offence Signing Date:22.08.2024 16:42:42 Certify that the digital and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified under Section 138 N .I. Act and, if at all it has been committed in relation to the aforesaid cheque in question. Learned counsel for the petitioner has referred to the copy of the cheque which is subject matter of the complaint and submitted that this cheque has been issued by Tarun Gautam in his personal capacity. He has drawn my attention to the copy of the complaint filed by respondent No.2 and submitted that even from the complaint, it is obvious that the cheque in question was issued by Tarun Gautam at Dehradun in absence of the petitioner. Therefore, by no stretch of imagination, the petitioner can be held liable for any offence committed in relation to the dishonour of the cheque. Learned counsel has submitted that since the ingredients of Section 138 N .I. Act are not fulfilled, the trial of the petitioner for the offence under Section 138 N.l. Act would be nothing but unnecessary harassment to the petitioner who is presently residing in USA and is abuse of process of law. Learned counsel for respondent No.2, on the contrary, submits that the cheque in question was issued for the discharge of existing liability of the firm M/s. Imagination Agri Exports of which the petitioner was a partner. Therefore, Section 141 N .I. Act is attracted and the petitioner is vicariously liable for the offence under Section 138 N.l. Act. I have considered the rival contentions and perused the record. Perusal of the complaint would show that the complaint has been filed against the individuals and not against the firm. If contention of respondent No.2 is to be accepted, then the main accused for offence under Section 138 N.l. Act is the firm M/s. Imagination Agri Exports, but the firm is not arrayed as an accused. If the main accused is not sent for prosecution, one fails to appreciate how a person alleged to be partner or person responsible for management of business of the firm can be held vicariously liable. Perusal of the complaint would show that there is no allegation whatsoever in the complaint to substantiate the plea that the cheque in question was issued by Tarun Gautam on behalf of the firm. The cheque C; has been issued from the personal account of Tarun Gautam. Therefore, it is absolutely clear that it is Tarun Gautam who issued the cheque in his - personal capacity and not on behalf of the firm. Section 138 N.l. Act reads thus: 138. Dishonour of cheque for insufficiency, etc., of funds in the account. Where any cheque drawn by a person on an account maintained by him with a banker for 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, 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 it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice, to any other provision of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless- (a) the cheque has been, presented 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; (b) the payee or the holder in due course. of the cheque as the case may be, 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 fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and / r-...., \...I (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation.-For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability." On perusal of proviso (c) of Section 138 N.l. Act, it is apparent that only the drawer of the cheque is liable for prosecution for offence under Section 138 N.l. Act. Only provision for fixing the vicarious liability of a person other than drawer of cheque is under Section 141 N .I. Act, which deals with offence committed by the company. Allegations in the complaint filed by respondent No.2 under Section 138 N .I. Act do not make out a case for holding the petitioner vicariously liable for the offence under Section 138 N.l. Act. Admittedly, the petitioner is not the drawer of the cheque. Therefore, he does not fall within the ambit of Section 138 N .I. Act. The result of above discussion is that no case under Section 138 N .I. Act is made out against the petitioner, who is presently residing in USA. Therefore, continuation of the trial of the petitioner would only result in unnecessary harassment to him and would be an abuse of the process of law. Accordingly, the petition is allowed. The impugned summoning order dated 04.02.2009 of the learned M.M. and the consequent orders qua the petitioner is set aside and the complaint qua him is quashed. Order Dasti. AUGUST . .. (AJIT BHARIHOKE) JUDGE q lt' :".