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2014 DIGILAW 1616 (RAJ)

Tata Motors Finance Ltd. v. Banshi Lal

2014-10-07

SANDEEP MEHTA

body2014
JUDGMENT 1. - Instant Miscellaneous Petition has been preferred by the petitioner-Tata Motors Finance Limited seeking quashing of the order dated 4.10.2010 passed by the ACJM, Gulabpura in Complaint Case No. 339 of 2010 whereby, the petitioner-company was summoned as an accused for the offence under Section 138 of the Negotiable Instruments Act. 2. None appears for the respondent-complainant despite service. 3. The Counsel for the petitioner submits that as per the admitted allegations in the complaint, the cheque on the basis whereof, the complaint was filed, was given to the complainant Banshilal by Hemant Sharma for repayment of personal loan. He submits that admittedly, no transaction of any kind ever took place between the petitioner-company and the complainant so as to make the petitioner-company responsible for facing prosecution under Section 138 of the Negotiable Instruments Act. He, therefore, prays that proceedings of the complaint are misconceived so far as the petitioner-company is concerned and are liable to be quashed to its extent. 4. I have gone through the impugned order and the record. 5. As per the admitted allegations contained in Para 1 of the complaint, Hemant Sharm. gave the cheque in question to the complainant towards his personal liability. A bare look at the cheque shows that it was issued by the State Bank of India and bears the name of Dinesh Kumar Sain who is also an accused in the case. The complainant has not alleged in the complaint that he, the petitioner-company and Dinesh Kumar Sain were having any fiduciary or other kind of relationship. In the legal notice (Ex. 5) issued by the complainants Counsel, it was specifically mentioned that Hemant Sharma had given the cheque in question to the complainant towards repayment of personal loan. 6. Upon a personal of the pre-cognizance statement of the complainant recorded by the Trial Court on 2.2.2010, it is evident that in the said statement also, the complainant has come out with the case that he had advanced a personal loan of Rs. 4,10,000/- to Hemant Sharma. Hemant Sharma gave the cheque in queslion to the complainant for repayment of his liability. The cheque in question to the complainant for repayment of his liability. The cheque bears the name and signature of Dinesh Kumar Sain with the seal of the petitioner-company. However, there is no allegation of the complainant that the petitioner-company owed any liability to him, 7. The cheque in question to the complainant for repayment of his liability. The cheque bears the name and signature of Dinesh Kumar Sain with the seal of the petitioner-company. However, there is no allegation of the complainant that the petitioner-company owed any liability to him, 7. Upon going through the record, another very significant fact is revealed. Another F.I.R. bearing No. 53 of 2010 in relation to the very same cheque was registered by the complainant Banshilal at Police Station, Gulabpura. In the said F.I.R., the police after investigation submitted a final report. In the protest petition, a specific plea was taken that at the time of handing the cheque to the complainant Dinesh Makana represented that he was working in the Tata Finance Company. After the cheque was dishonoured the complainant made enquiries from the Tata Finance Company, Jaipur upon which, he came to know that seal appended on the cheque was not that of the company. No person by the name of Dinesh Kumar or Hemant Sharma were employed or connected with Tata Finance Company. On the basis of said statement of the complainant, the learned ACJM, Gulabpura by the order dated 10.8.2011 took cognizance for the offences under Sections 420, 406, 467, 46N. 471 and 120-B IPC against Hemant Sharma, Dinesh Kumar Sain and Dinesh Makana. A perusal of the aforesaid order shows that the complainant himself has projected a theory in the said case that seal of the company on the disputed cheque is forged. 8. Thus, looking at the admitted factual scenario, it is evident that the petitioner-company can not be held responsible to face prosecution in his case by any stretch of imagination. There is no an iota of material on record to show that the petitioner-company was liable to make any payment to the complainant. Admittedly, cheque was handed over to the complainant by Hemant Sharma for clearing of his personal dues. Merely because the cheque bears its seal, the company cannot be prosecuted in the proceedings under the Negotiable Instruments Act unless the complainant alleged the existence of some fiduciary relationship between him and the company. That apart as noted above, the complainant has himself alleged in the other prosecution arising out of the F.I.R. No. 53 of 2010 Police Station, Gulabpura that the seal of the company appended on the cheque in question is forged. 9. That apart as noted above, the complainant has himself alleged in the other prosecution arising out of the F.I.R. No. 53 of 2010 Police Station, Gulabpura that the seal of the company appended on the cheque in question is forged. 9. In view of the above factual scenario, this Court is of opinion that it is a fit case to exercise inherent powers of this Court for quashing the proceedings of the complaint in question qua the petitioner-company. 10. Accordingly, the Miscellaneous Petition is allowed. The proceedings of the Complaint Case No. 339 of 2010 pending in the Court of ACJM, Gulabpura are quashed/ qua the petitioner-company. However, the trial of the remaining accused shall continue. Record of the Trial Court be sent back.Petition allowed. *******