IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.MMO Nos. 108 and 109 of 2011 Judgment reserved on : 25.8.2011. Date of decision: 27.8.2011. 1. Cr.MMO No.108 of 2011 Joydeep Roy ….. Petitioner. Versus Surinder Singh ...Respondent. 2. Cr.MMO No.109 of 2011 Joydeep Roy …. Petitioner. Versus Mohonder Singh ...Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? Yes For the Petitioner(s) : Mr. Ramesh Sharma, Advocate. For the Respondent(s) : Ms. Aruna Chauhan, Advocate. ______________________________________________________________ Kuldeep Singh Judge This judgment shall dispose of Cr.MMO No. 108 of 2011 and Cr.MMO No. 109 of 2011. Cr.MMO No. 108 of 2011: 2. The petitioner has filed petition under Section 482 Cr.P.C. for quashing complaint under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘Act’) and process issued in criminal complaint No. 97-3 of 2010 pending before the Judicial Magistrate 1st Class, Theog. _____________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 It has been stated in the petition that respondent has filed complaint under Section 138 of the Act against one Joy Deep Banarjee but the petitioner has been wrongly summoned as he has nothing to do with the cheque dated 15.12.2009 amounting to `.95,500/- allegedly issued on behalf of M/s New Mahamaya Trading Company (for short ‘Company’). There is no allegation in the complaint that petitioner is in any way responsible or incharge of the affairs of the Company. The cheque has been allegedly issued by Joydeep as partner. 3. The petitioner is Joy Deep Roy but the complaint has been filed against Joy Deep Banarjee and the process has been issued to Joy Deep Banarjee, but wrongly served upon petitioner, who in compliance to the process issued by the Court appeared before the learned Magistrate. He filed an application stating therein that the process has been wrongly served upon him as he is not the person who issued the cheque and against whom the complaint has been filed. 4. The complaint is not maintainable against the petitioner, who has no concern with the business of the firm on whose behalf the cheque has been allegedly issued. There is no averment in the complaint that the petitioner is in any way incharge or responsible of the affairs of the firm. These facts were brought to the notice of the learned Magistrate, who has not considered these facts in the order dated 7.6.2011. The learned Magistrate has committed jurisdictional error while passing order dated 7.6.2011. On these allegations, the petition has been filed for quashing the complaint and the process issued against the petitioner. 3 Cr.MMO No. 109 of 2011: 5. The petitioner has filed petition under Section 482 Cr.P.C. for quashing complaint and process issued in criminal complaint No.77-3 of 2010 pending before the Judicial Magistrate 1st Class, Theog under Section 138 of the Act. The petitioner has taken similar grounds in Cr.MMO No. 109 of 2011 as taken by him in Cr.MMO No. 108 of 2011. In this petition the cheque is dated 15.12.2009 amounting to `1,50,000/-. 6. I have heard the learned counsel for the parties and have also gone through the record. Mr. Ramesh Sharma, learned counsel for the petitioner has submitted that the petitioner has no connection with the person who has allegedly issued the cheques in both the cases. The complaints have been filed against Joy Deep Banarjee whereas petitioner is Joy Deep Roy. It has been stated that there is no averment in the complaints that petitioner is in any way responsible or incharge of the affairs of the Company. The learned counsel for the petitioner has relied M/s M.M.T.C. Ltd. and another vs. M/s Medchl Chemicals and Pharma (P) Ltd. and another AIR 2002 SC 182, K.K. Ahuja vs. V.K. Vora and another (2009) 10 SCC 48 and Subburam vs. Rajendran 2008 Cri.L.J. 760 (MAD.). 7. The learned counsel for the respondent in both the petitions has submitted that the petitioner has raised the dispute of identity of person who issued the cheque. This will be considered by the trial Court in due course. She has submitted that no fault can be found with the process issued by the Court below in both the cases. 4 8. In both the complaints almost identical averments have been made except the number of cheque and amount. It has been stated in the complaints that complainant had sold apple boxes to the accused and accused for payment of the said apple boxes had issued cheques for the realisation of the amounts to discharge the legally enforceable liability upon him. In both the complaints Joy Deep Banargee has been impleaded as accused. 9. In case No. 97-3 of 2010, the petitioner has filed an application on 7.6.2011 through counsel stating therein that the complaint has been filed against one Joy Deep Banarjee. The petitioner has no lawful relation with Joy Deep Banarjee. The cheque in question was allegedly issued by Joy Deep Roy. Joy Deep Roy and Joy Deep Banarjee is not the same and identical person. The complaint is not maintainable, the same be dismissed. In Case No. 77-3 of 2010 the petitioner has filed similar application on 7.6.2011. 10. The petitioner has projected the case that the petitioner and the person who issued the cheques are two different persons. There is no averment in the complaint that the petitioner is in any way responsible or incharge of the affairs of the firm. The petitioner in the applications filed in the Court below has not stated that the cheques in question were not issued by him nor he has stated in the applications that he has nothing to do with the Company. He has also not stated in the applications that he is not partner of M/s New Mahamaya Trading Company nor he has projected the case of forgery on the part of the respondent in preparing the cheque and filing the complaint against the petitioner. The Court below has issued process to the petitioner and all 5 legal defences are open to the petitioner. There is no legally acceptable material before this Court to record a finding that the petitioner and the person who issued the cheques are different persons. There is specific allegation in the complaints that the complainant had sold the apple boxes to the accused and accused for the payment of said apple boxes has issued the cheques. 11. In M/s M.M.T.C. Ltd. (supra), it has been held that Court exercising inherent powers is not justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the complaint. The burden of proving that there was no existing debt or liability is on the respondent, which is to be discharged in the trial. The Supreme Court in K.K.Ahuja (supra) has held that even an officer who was not incharge of and was responsible to the Company for the conduct of the business of the Company can be made liable under sub- section (2) of Section 141. For making a person liable under Section 141 (2), the mechanical repetition of the requirements under Section 141 (1) will be of no assistance, but there should be necessary averments in the complaint as to how and in what manner the accused was guilty of consent and connivance or negligence and, therefore, responsible under sub section (2) of Section 141 of the Act. 12. The Supreme Court in Green Earth Asphalt and Power Private Limited vs. State of Maharashtra (2008)8 SCC 278 has held that Section 141 of the Negotiable Instruments Act raises a legal fiction in terms whereof the Directors of a company which would include the partners of a firm would be deemed to have committed an offence along with the company if they are incharge of the affairs of the 6 company and responsible to it. In that case on facts, it was found that respondent No.3 was the authorized signatory of the company and in that capacity he has signed the cheque. Respondent No.2 is the firm. The Supreme Court has further held that the averments which were necessary to be made to rope in respondents 4 and 5 having not been made, the criminal proceeding could have been quashed against them but not against respondents 2 and 3. 13. In Subburam (supra) the High Court on admitted facts recorded a finding that there was no liability on the part of the petitioner. The High Court held that even if the petitioner admitted the criminal liability of his brother and undertakes to pay the amount, legally the petitioner cannot be compelled to pay the amount and there is no legally enforceable debt or other liability. On facts, Subburam (supra) is not applicable in the present case. 14. In K.K.Ahuja (supra), the Supreme Court has held that for making a person liable under Section 141 (2), the mechanical repetition of the requirements under Section 141 (1) will be of no assistance. In the complaints, the averments are that apple boxes were supplied to accused and he issued cheques in question. In K.K. Ahuja (supra) the Supreme Court in para 27 (ii) has held as follows:- “In the case of a Director or an officer of the company who signed the cheque on behalf of the company, there is no need to make a specific averment that he was in charge of and was responsible to the company, for the conduct of the business of the company or make any specific allegation about consent, connivance or negligence. The very fact that the dishonoured cheque 7 was signed by him on behalf of the company, would give rise to responsibility under sub-section (2) of Section 141”. 15. The cheques in question according to respondent have been issued by the petitioner for discharging legal liability. All defences permissible in law are open to the petitioner in both the cases. On the basis of the allegations in the complaints and material on record it cannot be said that the learned Magistrate has erred in issuing process to the petitioner in both the cases. In these circumstances, no case for quashing of complaints has been made out. The petitions are dismissed, so also the pending application(s), if any. The parties through their counsel are directed to appear before the Court below on 14.9.2011, the records of the Court below be also sent back to the said Court so as to reach before the date fixed. August 27, 2011 . ( Kuldip Singh ), (GR) Judge.