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2009 DIGILAW 1242 (BOM)

Viral Filaments Ltd. v. State of Maharashtra

2009-09-22

V.R.KINGAONKAR

body2009
JUDGMENT :- 1. Mrs.Sharmila Kaushik states that she has given consent to another lawyer Mr.Michael D’Souza and hence she may be discharged. Mrs.Sharmila Kaushik stands discharged as Mr.Michael D'Souza has filed Vakalatnama. 2. These are applications filed under section 482 of the Criminal Procedure Code for quashing of the private complaint cases instituted by the respondent no.2 for offence u/s.138 of the Negotiable Instrument Act (for short “the Act”). 3. It is not necessary to elaborately set out the case put forth by the respondent no.2-(complainant) in both the complaints. 4. Suffice it to say that according to the respondent no.2, certain amount was placed with the applicant (original accused no.2). The applicant assured to repay that amount to the respondent no.2 alongwith interest that would fall due on the date of payment. The applicant delivered a cheque which was issued by the original accused no.1, who is not a party to the application, alongwith a covering letter issued by the original accused no.3, who had signed the cheque as an authorized signatory. The cheuqes were dishonoured when presented to the Bank. The respondent no.2 issued demand notice to the applicant and other accused persons. The demand notice was not complied with. Consequently, the criminal cases were instituted vide C.C.No. S-698/1998 and C.C.No. 697/S of 1998. 5. The applicant would submit that the prosecution cannot withstand against it due to the fact that the cheques were never drawn on account of the applicant nor the applicant can be regarded as drawer of the said cheques. The applicant submits that the process issued against the applicant-Company is bad in law. The applicant further submits that the applicant had no domain over the bank account of the original accused nos. 1 & 3. The applicant urged to quash the criminal cases for the reason that no offence is made out even if the averments in the complaints are taken as they stand. 6. Heard learned counsel for the applicant and learned APP. None appeared for respondent no. 2. 7. On going through the averments made in the complaints, it is manifest that the transactions were allegedly between the respondent no.2 and the applicant, yet the cheques in question were not issued on the account of the applicant nor the applicant or any representative of the applicant was the signatory of the cheques. None appeared for respondent no. 2. 7. On going through the averments made in the complaints, it is manifest that the transactions were allegedly between the respondent no.2 and the applicant, yet the cheques in question were not issued on the account of the applicant nor the applicant or any representative of the applicant was the signatory of the cheques. The applicant merely handed over the cheuqes signed by the original accused no.3 as authorized signatory of the original accused no.1, namely M/s. Sinca Fibers, the proprietory concern of which Shri Balaram is shown as a Proprietor. The averments made in the complaints show that the description of the accused no.1 is given as one Shri Balaram (Original Accused No.1), who was the Sole Proprietor of M/s.Sinca Fibres, a proprietory concern. 8. What can be gathered from the averments in the complaints, as such, is that to discharge the financial liability of the applicants, a third party i.e. the original accused no.2 issued the cheques in question. The respondent no.2 may avail civil remedy for recovery of the amount due. Still, however, for the purpose of Section 138 of the Act, criminal action could be taken only against the drawer of the cheque. The sub-clause (c) of the proviso appended to section 138 of the Act would also make it amply clear that the offence would be completed when the drawer of the cheque fails to make the payment of the amount of money to the payee or to the holder in due course, within 15 days of the receipt of the demand notice. Obviously, unless it is shown that the applicant could be treated as drawer of the cheuqe in the eye of law, no criminal action can be instituted against him. It follows that the averments in the complaint do not make out any case which would show prima facie, the necessary ingredients of the offence punishable u/s.138 of the Act. In this view of the matter, the process issued against the applicant is quite unsustainable and they may amount to abuse of the process of the court. 9. In the result, the applications are allowed. The private complaint cases bearing nos. 698/S of 1998 & 697/S of 1998 to the extent of the applicant herein are quashed and the applicant stands discharged.