1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR CRIMINAL APPLICATION NO.211 OF 2011 (Smt. S. Jayalaxmi w/o. V. Srinivasan .vs. State and anr.) ................................................................................................................................ Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ................................................................................................................................ CORAM : A.P. BHANGALE, J. DATED : 15th July, 2011. Heard Mr. Nitin Lalwani, Adv. holding for Mr.Shyam Dewani, Adv. for the applicant, Mr.A.S.Parihar, A.P.P. for respondent no.1/State and Mr.S.A.Kalbande, Adv. for respondent no.2. By this application under Section 482 of the Code of Criminal Procedure, the applicant has prayed for quashing and setting aside the proceedings in Criminal Complaint No.3921 of 2010 instituted against the present applicant with a further prayer to quash and set aside the order dt.28.6.2010 passed by the learned 24th Judicial Magistrate, First Class, Nagpur under the Negotiable Instruments Act, Nagpur whereby the learned trial Magistrate, after perusing the complaint and the documents and hearing the submissions, was pleased to satisfy himself that the accused named in the complaint 2 has committed the offence punishable u/s. 138 of the Negotiable Instruments Act. On the basis of prima facie satisfaction in respect of the case being made out by the complainant, summons was issued to the accused u/s. 138 of the Negotiable Instruments Act. It is the contention of the applicant that the impugned order is faulty, perverse and against the settled principles of law and was passed in a mechanical manner without application of mind; although, according to the applicant, no offence is made out against her. It is further contended that the applicant cannot be made vicariously liable because the principles of vicarious liability are not attracted in the present case. The application has been opposed vehemently by the learned Advocate for the respondent/complainant on the ground that the notice of demand was issued by the complainant through an Advocate on 25.3.2010, which was addressed to the accused who were looking after the business of M/s. Shree Gokul Transport Company. It appears that the case of complainant is that M/s. Shree Gokul Transport Company had entered into business transaction with the complainant in respect of hiring of Indigo Classic Car bearing registration No.MH- 31/CA-2907 and pursuant to the said contract, total payments of Rs4,14,000/- were due; out of which, payment in the sum of Rs.1,20,600/- was made initially 3 and thereafter, demand of Rs.1,03,000/- was made by Cheque No.974956 drawn upon Dena Bank, Dharampeth Branch, Nagpur on 16.2.2010. The said cheque was deposited with Dena Bank, Nagpur on 16.2.2010 itself, which was returned dishonoured by reason of “funds insufficient” on or about 12.3.2010. On that basis, notice of demand was issued on 25.3.2010 which was addressed to all the three accused. According to the complainant, present applicant is described as proprietor of Shree Gokul Transport Company, while the accused nos. 2 and 3 are respectively daughter-in-law and son of the first accused and were doing business as members of the family. It is specifically mentioned in the complaint that the members of the whole family are doing various business and one of their business is the Transport Company in question. It also appears that the notice of demand was replied on 15.5.2010 by M/s. Shree Gokul Transport Co. in which it appears the Indigo Classic Car bearing registration No.MH-31/CA-2907 was hired in the year 2008-09 for a period of fifteen and a half months. Although the accused, in their reply, denied having given the cheque in the sum of Rs.1,03,000/- drawn upon Dena Bank, Dharampeth Branch, Nagpur, it is a fact that the said cheque was returned with remarks “funds insufficient”, on the basis of which demand was made. Considering the averments made in the 4 complaint, the notice of demand and the reply given thereto, it does appear that there are grounds made out by the complainant for the trial instituted at his behest to proceed further. The process is already issued. It is open for the accused to raise their defences before the learned trial Magistrate during the trial. The learned Advocate for the respondent/complainant made a reference to the ruling in the case of P. Ramchandra Reddy and another .vs. M/s. Sanghi Enterprises and Ors. reported in 2004 Cri.L.J.2171 . It appears that, the High Court, after making reference to the Judgment delivered by the three- Judge Bench in the case of State of Karnataka vs. Devendrappa reported in 2002 (3) SCC 89 and the ruling in the case of S.A.Najundeswara vs. M/s. Varilak Agrotech Pvt. Ltd, AIR 2002 SC 477, held that, in a petition u/s. 482 of the Code of Criminal Procedure, the High Court should not assume the role of a trial Court and embark upon a enquiry as to the reliability of evidence and sustainability of accusations on a reasonable apprehension of such evidence. It is further held that when the allegations in the complaint filed under Section 138 of the Act read with the sworn statement of the complainant, when taken on their face value show the commission of the offence, the complaint cannot be quashed u/s. 482 of the Code of Criminal 5 Procedure. Therefore, on the basis of the averments made in the complaint and verification to support, when the learned trial Magistrate has issued process after hearing the submissions at the bar, prima facie, no fault can be found with issuance of process and no exceptional ground is made out to exercise extra-ordinary inherent powers in order to quash the proceedings. The application is, therefore, dismissed. JUDGE jais