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2010 DIGILAW 351 (UTT)

HIMANSHU GAVA v. STATE OF UTTARANCHAL

2010-06-02

PRAFULLA C.PANT

body2010
JUDGMENT 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 the criminal complaint case no. 1163 of 2003, Pushkar Mal & others Vs. Himanshu Gava & others, relating to offence punishable under section 138 of Negotiable Instruments Act, 1881, pending in the court of Chief Judicial Magistrate, Rudrapur, District Udham Singh Nagar. 2. Heard learned counsel for the parties and perused papers on record. 3. Brief facts of the case are that the respondent No. 2 and respondent No. 3 filed a criminal complaint no. 1163 of 2003, before Chief Judicial Magistrate, Udham Singh Nagar against the petitioners and M/s Gava Rice Mill with the pleading that the complainants are dealing with the paddy business. The accused purchased paddy from the complainants, and towards part payment of the price, the cheque no. 407370 signed by petitioner no. 1 was issued for an amount of Rs. 2,50,000/-. When said cheque was presented before the bankers, same was dishonoured with the endorsement “insufficient funds”. On this, the complainant gave a notice to the petitioner no. 1, and when within 15 days of receipt of notice no payment was made, the criminal complaint was filed. 4. Learned counsel for the petitioners submitted that copy of the notice (which is Annexure-2 to the petition) shows that the same was given to only Himanshu Gava (petitioner no. 1) as partner of Gava Rice Mill. It is further pleaded that no notice was given to the petitioner no. 2, and as such the notice is not valid. However, it is admitted by the learned counsel for the petitioners that petitioner no. 2 Hansraj Gava has already expired. As such, this Court is of the view that atleast as against the petitioner no. 1 Himanshu Gava, prima facie, it cannot be said that the notice suffers from such illegality on the basis of which the complaint can be quashed. 5. Next submission advanced on behalf of the petitioners is that it is nowhere pleaded by the complainants that Himanshu Gava (petitioner no. 1) was responsible for day to day business of the firm on whose behalf the petitioner no. 1 as said to have issued the cheque. Relying on the cases of S.M.S. Pharmaceuticals Ltd. Vs. 5. Next submission advanced on behalf of the petitioners is that it is nowhere pleaded by the complainants that Himanshu Gava (petitioner no. 1) was responsible for day to day business of the firm on whose behalf the petitioner no. 1 as said to have issued the cheque. Relying on the cases of S.M.S. Pharmaceuticals Ltd. Vs. Neeta Bhalla & another (2005) 8 SCC page 89 and K.K. Sidharthan vs. T.P. Praveena Chandran & another (1996) 6 SCC 369, it is argued that the criminal complaint against the petitioner no. 1 is not maintainable. I have gone through the copy of the complaint which is filed Annexure-A to the petition. In para 2 of the criminal complaint it is pleaded that the cheque in question was signed by the accused no. 1 (Himanshu Gava/petitioner no. 1) on behalf of the firm. In the opinion of this Court when the cheque itself is signed by a person, it is clear that he is a person responsible for the business of the firm and it cannot be said that for his role it is necessary to plead that he was responsible for day to day business of the firm. The complainants have pleaded as to the role of accused no. 2, another partner that he was responsible for day to day business. Had it been the case where the cheque was not allegedly signed by the petitioner no. 1 on behalf of the firm it could have been said that not pleading that he was responsible for day to day business of the firm is fatal to the case of the complainants. 6. Lastly, it is pleaded on behalf of the petitioners that the cheque in question was lost and bank was also informed about the ‘stop payment’. Both these pleas are factual matters which can be examined by the trial court, after recording evidence. This Court, with half baked evidence before it cannot give opinion whether the cheque in question was lost or not. As far as merely instructing the bankers to ‘stop payment’ is concerned, in Modi Cements Ltd. Vs. Kuchil Kumar Nandi (1998) 3 SCC 249, the Apex Court has given its view that the accused cannot escape liability under section 138 of Negotiable Instruments Act, 1881, by simply giving stop payment instruction to the bank. 7. As far as merely instructing the bankers to ‘stop payment’ is concerned, in Modi Cements Ltd. Vs. Kuchil Kumar Nandi (1998) 3 SCC 249, the Apex Court has given its view that the accused cannot escape liability under section 138 of Negotiable Instruments Act, 1881, by simply giving stop payment instruction to the bank. 7. For the reasons as discussed above without expressing any opinion as to the final merits of the case, the petition under section 482 of Cr.P.C. is dismissed. Interim order dated 14.10.2004, stands hereby vacated.