JUDGMENT : 1. Rule. Mr. Harshit S.Tolia, learned advocate for the respondent no.1 and Ms. Monali Bhatt, learned APP, for the respondent no.2, waive service of notice of Rule on behalf of respective parties. With the consent of the parties, the matter is heard finally today. 2. This petition has been filed under Article 226 of the Constitution of India as well as Section 482 of the Code of Criminal Procedure for quashing and setting aside the complaint being Criminal Case No.2288 of 2014 pending before the learned 6th Additional Chief Judicial Magistrate, Bhavnagar under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the ‘N.I. Act’ for short) and the consequential proceedings, if any, initiated in pursuance thereof. 3. It is stated in the petition that a Memorandum of Understanding (MoU) was signed between the respondent no.1 and 23 clients of the respondent no.1, which included the present petitioners and even by Arvindbhai Pragjibhai Jogani with regard to the land belonging to respondent no.1. It is stated that the said land was acquired by the Government and vested to the Agricultural Department and thereafter to Bhavnagar University. It is contended that from the very beginning the said MoU had no legal force or legal binding, as the persons signing it as the owners of the land, were not at all competent to sign the MoU. It is stated by the petitioners that they had no active role in execution of MoU except the fact that their names were included in the MoU as parties. 3.1 It is stated that a Cheque bearing No.131875, dated 22.12.2013 of Rs.5,50,000/- signed by Mr. Arvindbhai Pragjibhai Jogani, drawn on HDFC Bank, Hazira Branch, Surat, was given to the complainant, who is respondent no.1 in the present petition, while the present two petitioner have no connection and nowhere are related to that transaction of Arvindbhai Pragjibhai Jogani with that of respondent no.1. 3.2 The subject cheque got dishonoured on 05.03.2014 on the ground of insufficiency of fund. Statutory legal notice was issued on 20.03.2014 to the present petitioners and Mr. Arvindbhai Pragjibhai Jogani, alleging that the cheque was issued as a part of MoU. 3.2 The subject cheque got dishonoured on 05.03.2014 on the ground of insufficiency of fund. Statutory legal notice was issued on 20.03.2014 to the present petitioners and Mr. Arvindbhai Pragjibhai Jogani, alleging that the cheque was issued as a part of MoU. It is stated by the present petitioners that legal notice does not allege issuance of cheque as in compliance of MoU and further in the notice respondent no.1 has admitted the fact of cheque being signed by Mr. Arvindbhai Pragjibhai Jogani. 3.3 It is contended in the petition that the petitioners neither signed the cheque nor have issued the same to the respondent no.1 - complainant of Criminal Case No.2288 of 2014. The entire grievance of the complainant is against Mr. Arvindbhai Pragjibhai Jogani, who had signed the cheque, which came to be dishonoured and after the legal notice, criminal complaint filed under Section 138 of the N.I. Act. 4. Heard Mr. Kuldeep D.Vaidya, learned advocate for the petitioners, Mr. Harshit S.Tolia, learned advocate for respondent no.2 and Ms. Monali Bhatt, learned APP for the respondent no.1 - State. 5. Mr. Kuldeep D.Vaidya, learned advocate for the petitioners submitted that the learned Additional Chief Judicial Magistrate, Bhavnagar has mechanically passed the order of taking cognizance under Section 204 of the Cr.P.C. against all the arraigned accused and summons were ordered to be issued. Mr. Vaidya, submitted that cheque was signed by Mr. Arvindbhai Pragjibhai Jogani in whose name the Bank Account was running. He submitted that the present petitioners were not the joint bank account holders, thus no liability can be attached towards the cheque issued by Mr. Arvindbhai Pragjibhai Jogani. Advocate Mr. Vaidya, referring to the order passed in Special Criminal Application (Quashing) No.1638 of 2015 dated 19.04.2017, submitted that petitioner no.1 – Bharatbhai Chhaganbhai Patel had also challenged the process issued in Criminal Case No.2287 of 2014, which was pending in the Court of 2nd Additional Chief Judicial Magistrate, Bhavnagar under Section 138 of the N.I. Act; the co-ordinate bench relied on the judgment of Hon’ble Supreme Court in case of Mrs. Aparna A.Shah Vs. Aparna A.Shah Vs. M/s. Sheth Developers Private Limited & Anr., reported in AIR 2013 SC 3210 , wherein the Hon’ble Supreme Court had taken the view that it is only the drawer of the cheque who can be held responsible, found the case squarely falling under the decision of the Hon’ble Supreme Court and thus, the proceedings against the petitioner was ordered to be quashed. 6. Mr. Vaidya, learned advocate for the petitioners, relied on the recent judgment of the Hon’ble Supreme Court in case of Alka Khandu Avhad Vs. Amar Syamprasad Mishra & Ors., reported in AIR 2021 Supreme Court 1616, to submit that the person, who was not the signatory to the cheque dishonoured nor was joint bank account holders, would not have joint liability under Section 138, and therefore, relying on the proposition laid down in the said judgment, prayed to quash and set aside the proceedings qua the present petitioners. 7. Mr. Harshit S.Tolia, learned advocate for respondent no.2, submitted that during the trial, by adducing the evidence, it should be decided whether the petitioners would be jointly or severely liable for the amount, as signed in the cheque by Mr. Arvindbhai Pragjibhai Jogani. Mr. Tolia, submitted that the question of facts would require a decision from the trial Court, therefore, prayed for rejecting the petition. 8. The legal notice issued under Section 138 dated 20.03.2014 is on record, which was part of the proceedings before the learned 6th Additional Chief Judicial Magistrate, Bhavnagar and accordingly Cheque No.131875 of Rs.5,50,000/- dated 22.12.2013 was signed by Mr. Arvindbhai Pragjibhai Jogani, in whose name the Bank Account was running and the present petitioners were not the joint bank account holders. Account No.09041050003251 at HDFC Bank, Surat, is an individual account in the name of Mr. Arvindbhai Pragjibhai Jogani, the said impugned cheque is not signed by the present petitioners. 9. Arvindbhai Pragjibhai Jogani, in whose name the Bank Account was running and the present petitioners were not the joint bank account holders. Account No.09041050003251 at HDFC Bank, Surat, is an individual account in the name of Mr. Arvindbhai Pragjibhai Jogani, the said impugned cheque is not signed by the present petitioners. 9. In the case of Alka Khandu Avhad (supra), it has been observed that the following ingredients are to be satisfied to constitute the offence under Section 138 of the N.I. Act: “(i) that the cheque is drawn by a person and on an account maintained by him with a banker; (ii) for the payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability; and (iii) the said cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account.” 9.1 In the case of Jugesh Sehgal Vs. Shamsher Singh Gogi, reported in (2009) 14 SCC 683 , referring to the scope and ambit of powers of the High Court under Section 482 of the Code, the Supreme Court, observed that, the scope and ambit of powers of the High Court under Section 482 of the Code has been enunciated and reiterated by the Apex Court in series of decisions and several circumstances under which the High Court can exercise jurisdiction in quashing proceedings, have been enumerated. The powers under Section 482 are very wide, but it should be exercised in appropriate cases, ex debito justitiate to do the real and substantial justice. The inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice. The powers have to be exercised sparingly, with circumspection and in the rarest of rare cases, where the Court is convinced, on the basis of material on record, that allowing the proceedings to continue would be an abuse of the process of the court or that the ends of justice require that the proceedings ought to be quashed. The powers have to be exercised sparingly, with circumspection and in the rarest of rare cases, where the Court is convinced, on the basis of material on record, that allowing the proceedings to continue would be an abuse of the process of the court or that the ends of justice require that the proceedings ought to be quashed. 9.2 In case of State of Haryana V. Bhajan Lal and others, AIR 1992 SC 604 , the Apex Court formulated as many as seven categories of cases, wherein the extraordinary power under Section 482 could be exercised by the High Court to prevent abuse of process of the court. It was clarified that it was not possible to lay down precise and inflexible guidelines or any rigid formula or to give an exhaustive list of circumstances in which such power could be exercised. 9.3 Section 138 of the N.I. Act reads as under: "138. It was clarified that it was not possible to lay down precise and inflexible guidelines or any rigid formula or to give an exhaustive list of circumstances in which such power could be exercised. 9.3 Section 138 of the N.I. Act reads as under: "138. Dishonour of cheque for insufficiency, etc., of funds in the account.-Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an arrangement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may extend to two years, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless- (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice. Explanation.- For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability". Explanation.- For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability". 9.4 The plain reading of Section 138 makes it clear that it has to be strictly interpreted, as penal provision is made for commission of offence as prescribed under Section 138 of the N.I. Act. It is drawer of the Cheque, who has to be made liable for the payment of amount of money due to the payee or the holder of the Cheque within the statutory limits as provided, after the receipt of the legal notice demanding the cheque money. If the drawer of the Cheque fails to make payment of the said amount of money, then such person shall be deemed to have committed offence. Without prejudice to any of the provisions of the N.I. Act, the penal provision is for the punishment with imprisonment for a term which may extend to two years or with fine which may extend to twice the amount of the Cheque or with both. Criminal prosecution is neither for recovery of money nor for enforcement of any security. Section 138 of the N.I. Act being a penal provision, it entails a conviction and sentence at the end of the criminal proceedings. There is a statutory presumption under Section 139 of the N.I. Act in favour of the holder of the Cheque. A prosecution under Section 138 of the N.I. Act is ultimately to bring the offender to suffer penal consequences. 10. The case of the complainant in Criminal Case No.2288 of 2014 does not fall under the provisions of Section 141 of the N.I. Act. It appears that the impugned cheque has not been signed by the present petitioners, the same has been signed and issued by Mr. Arvindbhai Pragjibhai Jogani, from the individual bank account maintained by him. The present petitioners cannot be made vicariously liable for the act of Mr. Arvindbhai Pragjibhai Jogani, who has issued the cheque in his personal capacity. It appears that the learned trial Court Judge has not considered the averments of the complaint and has not examined the status of the accused prior to order for issuance of summons against the present petitioners. The proceedings under Section 138 of the N.I. Act cannot be misused by any of the parties. It appears that the learned trial Court Judge has not considered the averments of the complaint and has not examined the status of the accused prior to order for issuance of summons against the present petitioners. The proceedings under Section 138 of the N.I. Act cannot be misused by any of the parties. The culpability is attached with the dishonour of the Cheque and it is only the drawer of the Cheque who can be made accused in any proceedings under Section 138 of the N.I. Act. The analogy of section 141 of the N.I. Act, which deals with the offences of the company, cannot be stretched to make petitioners vicariously liable to face the prosecution under Section 138 of the N.I. Act. The trial against the present petitioners in Criminal Case No.2288 of 2014 would be abuse of process of Court. Hence, the Court is of the opinion that this is a fit case where the inherent powers of the Court under section 482 of the Cr.P.C. could be exercised in favour of the petitioners for securing the ends of justice. 11. In the result, the petition is allowed. The Criminal Case No.2288 of 2014 pending before the learned 6th Additional Chief Judicial Magistrate, Bhavnagar under Section 138 of the N.I. Act and the consequential proceedings initiated in pursuance thereof are quashed and set aside qua the present petitioners. Rule is made absolute. Direct service is permitted.