CRM No. M-6727 of 2008 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No. M-6727 of 2008 (O&M) Date of decision: July 21, 2009 Gagan Ahluwalia .. Petitioner v. M/s Guru Nanak Paper Mills Limited .. Respondent CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. J. S. Bedi, Advocate for the petitioner. Mr. N. K. Bansal, Advocate for the respondent. .. Rajesh Bindal J. The petitioner has approached this Court seeking quashing of Criminal Complaint No. 142 dated 5.7.2006, filed by the respondent under Sections 138 and 142 of the Negotiable Instruments Act, 1881 (for short, `the Act') and all subsequent proceedings thereto against the petitioner. Briefly, the pleaded facts are that the petitioner is a Director of Paper Fiber Impex, who acted as an agent for import of raw material by the respondent from Tri Star Export International, Canada. During the course of business transaction, a cheque was issued by Brain Menezes of Tri Star Export International in favour of the complainant-respondent for a sum of US $ 6908 on 6.3.2006. As the petitioner was acting as an agent, the aforesaid cheque was delivered by the petitioner to the respondent with his covering letter dated 9.3.2006. The cheque was presented by the respondent-complainant for clearance, but the same was returned with the remarks “payment stopped” vide memo dated 2.5.2006. As the amount was not made upon the notice issued, the complaint was filed in which the petitioner was also summoned to face trial vide order dated 3.9.2007. It is at this stage that the petitioner has approached this court seeking quashing of the complaint as all as all subsequent proceedings thereto. Learned counsel for the petitioner submitted that the petitioner was merely acting an agent in getting the deal struck between Tri Star Export International, Canada and the respondent-complainant. The petitioner is neither to pay any amount to the respondent-complainant nor he is Director or person CRM No. M-6727 of 2008 [2] incharge of the affairs of Tri Star Export International. The ingredients of Sections 138 and 141 of the Act are not made out against the petitioner. He is not even signatory to the cheque. He further referred to the complaint filed by the respondent, wherein there are no allegations against the petitioner as to in what capacity he is sought to be impleaded as one of the co-accused, as all what has been said is that the material was imported through the petitioner. Learned counsel further submitted that the impugned summoning order has been passed by the learned court below without application of judicial mind, as the court has not pointed out as to how the petitioner is at all concerned with the dealings between the respondent-complainant and Tri Star Export International to make the petitioner liable to be prosecuted for dishonour of cheque. Reliance was placed upon S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla and another, (2007) 2 SCC (Cri) 192 and DCM Financial Services Ltd. v. J. N. Sareen and another, 2008(3) RCR (Criminal) 152. On the other hand, learned counsel for the respondent submitted that the respondent-complainant never dealt with Tri Star Export International as all payments were being made through the petitioner. As to whether the petitioner is a partner or Director of the exporter is a matter of evidence, which can be proved only during trial. The statement of fact, as has been made in the complaint filed, is sufficient to proceed against the petitioner, as at this stage only prima facie case has to be seen against the petitioner to proceed with. It is not a case where the proceedings against the petitioner should be scuttled in the very beginning, who was an agent and played active role in business dealings between the parties. Heard learned counsel for the parties and perused the record. A perusal of Section 138 of the Act shows that in case a cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money due to another person for discharge in whole or in part on account of any debt or any other liability is returned unpaid, such person shall be punished with imprisonment for a term which may extend to two years or with fine to the extent of twice the amount of the cheque or with both. Section 141 of the Act provides that if the person committing the offence under Section 138 of the Act is a company, every person who, at the time the offence was committed, was incharge or and was responsible to the company for the conduct of the business of the company as well as the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished. In the complaint filed by the respondent-complainant, it is alleged that the respondent-complainant had imported raw material from Tri Star Export CRM No. M-6727 of 2008 [3] International, Canada through the petitioner on advance payment. As the quality of the material was found to be inferior, the petitioner handed over a cheque of US $ 6098 drawn on Canada Trust to the complainant to make good the loss suffered by the respondent-complainant. The petitioner was sought to be made an accused with the company on the ground that the cheque was handed over by him in the office of the respondent-complainant at Mohali, which was signed by Brain Menezes and both of them are liable to be proceeded with under Sections 138 and 142 of the Act. Copy of the cheque issued by Tri Star Export International to the respondent-complainant with signatures of Brain Menezes drawn on Canada Trust for US $ 6098 has been placed on record, which is not disputed by the respondent- complainant. The sum total of all the undisputed facts, as have come on record, is that it is a case where the petitioner merely acted as an agent for striking the dealing for import of raw material from Tri Star Export International by the respondent-complainant, for which the payment was made to the exporter. There is no allegation in the complaint that the petitioner is either the Director or the partner of Tri Star Export International. Rather, it is not even evident from the complaint as to whether Tri Start Export International is a company or a firm. The contention of learned counsel for the respondent-complainant that the petitioner was an agent, who had delivered the dishonoured cheque by Tri Star Export International under the signatures of Brain Menezes in the office of the respondent-complainant and on that account, the petitioner is also liable to be prosecuted under Section 138 of the Act has no legs to stand. For the reasons mentioned above, in my opinion, continuation of prosecution of the petitioner in the complaint filed by the respondent would certainly amount to misuse of the process of law and unnecessary harassment to the petitioner. Accordingly, the impugned complaint and all subsequent proceedings thereto qua the petitioner are quashed. The petition stands disposed of. (Rajesh Bindal) Judge July 21 ,2008 mk