IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. Application(C482) No. 196 of 2004 1. Ajay Mahajan S/o Shri Keshav Ram Mahajan R/o 239, Alora Enclave, Dayalbagh Agra, District Agra (U.P) 2. Sanjay Mahajan S/o Shri Keshav Ram Mahajan R/o 103, Siddharth Apartment, Near Civil Court, Agra District Agra (U.P) ……..…Applicants Versus 1. State of Uttaranchal (Uttarakhand) 2. M/s Gupta Lime & Limestone Co. G-37, Race Course, Dehradun Through its partner Shri Sunil Kumar Gupta .....……Opposite Parties Shri Rajendra Dobhal, Advocate, present for the petitioners. Shri M.A. Khan, Brief Holder, present for the State. Shri S.K. Jain, Advocate, present for respondent no.2/complainant. Hon’ble Prafulla C. Pant, J. By means of this petition moved under section 482 of Code of Criminal Procedure 1973, (for short Cr.P.C,) the petitioners have sought quashing of the proceedings of criminal complaint case No. 2197 of 2003, M/S Gupta Lime & Limestone Co. Vs. M/s Mahajan Tanners Ltd. & others, relating to offence punishable under section 138 of Negotiable Instruments Act, 1881, pending in the court of Special Judicial Magistrate, II, Dehradun. 3. Heard learned counsel for the parties and perused the papers on record. 4. Brief facts of the case are that complainant (present respondent no. 2) deals with business of supply of lime. As per the criminal complaint accused no. 3, Ashok Mahajan, accused no. 4 Ajay Mahajan and accused no. 5 Sanjay Mahajan are directors of accused no. 1 M/s Mahajan Tanners Ltd. It is further pleaded in the complaint that accused no. 3 Ashok Mahajan is also director of accused no. 2 M/s Bench Mark Teather Goods Pvt. Ltd. For supply of lime by the complainant, an amount of Rs. 1,76,042.66/- was outstanding. Two cheques bearing no. 007684 dated 20.11.1998 and no. 007685 dated 15.12.1998, were issued by accused no. 3 Ashok Mahajan as director of accused no. 2. Both the cheques were bounced and dishonoured on the ground ‘funds insufficient’. The complainant on this got served notice on accused no. 1 M/s Mahajan Tanners Ltd., and after waiting for fifteen (15) days, filed the criminal complaint. 5. Learned counsel for the petitioners Ajay Mahajan and Sanjay Mahajan stated that the petitioners are the accused no. 4 and accused no. 5 in the criminal complaint. From the contents of the criminal complaint it is clear that the cheques were issued by accused no. 3 Ashok Mahajan (not petitioner) on behalf of accused no. 2 M/s Bench Mark Teather Goods Pvt. Ltd. (not petitioner). It is argued on behalf of the petitioners that assuming what has been stated in the criminal complaint is true, the ingredients of the offence punishable under section 138 of Negotiable Instruments Act, 1881, are not made out against the petitioners namely Ajay Mahajan and Sanjay Mahajan, who have neither signed the cheques nor are they directors of accused no. 2, on whose behalf cheques were issued. 6. In reply to the above argument referring to the provision contained in section 141 of Negotiable Instruments Act, 1881, and the principle of law laid down in K.K. Ahuja vs. V.K. Vora & another (2009) 10 SCC 48, it is argued on behalf of the complainant (present respondent no. 2) that since the present petitioners are incharge of business of accused no. 1 as such they are also responsible under the Act. 7. I have gone through the provision contained in section 141 of the Act and also the case law i.e. K.K.Ahuja (supra). In the case of K.K. Ahuja (supra) it is mentioned in para 5 of the judgment that the accused persons approached the complainant and they had issued the cheques. In the present case it is nowhere pleaded in the criminal complaint that either accused no. 4 Ajay Mahajan or accused no. 5 Sanjay Mahajan ever signed any cheque. Not only this, they are said to be directors and persons incharge for accused no. 1 i.e. M/s Mahajan Tanners Ltd., while the cheque was issued on behalf of accused no. 2 i.e. M/s Bench Mark Teather Goods Pvt. Ltd. by accused no. 3 Ashok Mahajan. In the circumstances neither the provision contained in section 141 of Negotiable Instruments Act, 1881, nor the principle of law laid down in K.K. Ahuja vs. V.K. Vora & another (2009) 10 SCC 48 are of any help to the complainant, as against the present petitioners namely Ajay Mahajan and Sanjay Mahajan with regard to whom it is nowhere alleged that they signed the cheque, or that they are directors of accused no. 2, on behalf of whom cheques were issued. 8. For the reasons as discussed above this petition deserves to be allowed, as even if the allegations made in the criminal complaint are taken to be true the ingredients of the offence punishable under section 138 of Negotiable Instruments Act, 1881, are not made out against the present petitioners. 9. Therefore, the petition is allowed. The proceedings of the criminal complaint case no. 2197 of 2003 M/S Gupta Lime & Limestone Co. Vs. M/s Mahajan Tanners Ltd. & others, relating to offence punishable under section 138 of Negotiable Instruments Act, 1881, pending in the court of Special Judicial Magistrate, II, Dehradun, so far as the same relate to the present petitioners namely Ajay Mahajan and Sanjay Mahajan are hereby quashed,. However, it is made clear that the trial court may proceed as against the other accused M/s Bench Mark Teather Goods Pvt. Ltd., and its director Ashok Mahajan. Dt. 01.06.2010 Parul (Prafulla C.Pant,J)