JUDGMENT : 1. Heard Ms. Hetvi H. Sancheti, the learned advocate with Mr. Nigam R. Shukla, the learned advocate appearing for the applicant, Mr. Nishit P. Gandhi, the learned advocate appearing for the respondent No.1 and Ms. Maithili D. Mehta, the learned Additional Public Prosecutor appearing for the respondent No.2 - State. 2. Issue Rule returnable forthwith. Learned advocates appearing for the respective parties waive service of notice of rule on behalf of the respective respondents. 3. By way of this application, the applicant herein has prayed for quashing and setting aside the proceedings arising from Criminal Case No.932 of 2017 pending before the Court of learned Judicial Magistrate First Class Deesa, District: Banaskantha. 4. The opponent No.1 in complaint has alleged that :- 4.1 That the opponent No.1 is in business of Guar Gum and Guar Dana at the address stated in the cause title. That one Hitesh S. Sharma and one Dharmeshbhai Joshi of Dharmesh Agency; both accused Nos.3 and 5 who are not connected with Kapil Corporation in any capacity; had called opponent No.1 and inquired about the price of Guar Dana, to which the opponent No.1 had informed that price of Gaur Dana was Rs.87/- per kg and thereafter, said Hitesh Sharma and Dharmeshbhai Joshi had placed an order to supply 10,000 kg. of Guar Dana which was priced at Rs.87/- per kg. The opponent No.1 has alleged in the complaint that the order was placed in the name of Kapil Corporation, whose proprietor was the applicant herein. 4.2 It is alleged that the goods were sent by the opponent No.1 and before the truck reached at Kapil Corporation, the accused No.3 Hitesh Sharma and accused No.5 Dharmeshbhai Joshi in the criminal case had asked the driver of the truck to deliver the goods at some unknown place and accordingly, the goods were delivered by the driver of the truck at some unknown place. It is further alleged by the opponent No.1 that by invoice dated 26.07.2015, the goods of quantity of 10,000 kgs of the price of Rs.87/- per kg was sent and thereafter, the payment was not made by Hitesh or Dharmeshbhai, i.e. accused Nos.3 and 5 respectively. It is further alleged by the opponent No.1 that by invoice dated 26.07.2015, the goods of quantity of 10,000 kgs of the price of Rs.87/- per kg was sent and thereafter, the payment was not made by Hitesh or Dharmeshbhai, i.e. accused Nos.3 and 5 respectively. 4.3 The opponent No.1 had been making frequent demands of payment and therefore, a cheque amounting to Rs.8,70,000/- came to be drawn in favour of the opponent No.1's business establishment, which was dated 20.09.2015 drawn on Kalupur Commercial Bank, Isanpur Branch, at Ahmedabad, which was given to the opponent No.1- complainant. It is further alleged in the complaint that upon depositing the said cheque by the opponent No.1 - complainant in his bank account, the same came to be returned with the remark of 'Payment Stopped' by the Drawee i.e. the applicant. It is further alleged by the opponent No.1 - complainant that in response to continues demand Hitesh i.e. accused No.3 had issued a cheque of Rs.8,70,000/- in favor of opponent No.1 and on depositing the same for the first time, it had bounced because of 'insufficient funds' in the HDFC, Vastrapur Branch Bank Account of Hitesh and, thereafter again on demanding the payment from Hitesh. 4.4 The accused No.3 had issued a cheque dated 16.11.2016, the said cheque came to be deposited by the opponent No.1 - complainant on 17.11.2016 which came to be returned on 22.11.2016. The accused No.3 had assured the opponent No.1 - complainant that the said cheque will be encashed, and therefore, opponent No.1 - complainant re-deposited the said cheque on 11.01.2017 which came to be returned on account of 'insufficient fund' on 13.01.2017. The opponent No.1 - complainant issued a statutory notice under the provisions of Section 138 of the Negotiable Instruments Act, 1881 calling upon the applicants - accused No.3 viz. Hitesh and accused No.5 viz. Dharmeshbhai to make payment of Rs.8,70,000/- within a period of 15 days from the date of receipt of the said notice. However, the said notice not replied to either by the accused No.3 viz. Hitesh or accused No.5 viz. Dharmeshbhai, which resulted into filing of Inquiry Case No.23 of 2017 before the Court of learned Judicial Magistrate First Class Deesa, District : Banaskantha. However, the said notice not replied to either by the accused No.3 viz. Hitesh or accused No.5 viz. Dharmeshbhai, which resulted into filing of Inquiry Case No.23 of 2017 before the Court of learned Judicial Magistrate First Class Deesa, District : Banaskantha. Thereafter, the said inquiry case came to be recorded as Criminal Case No.932 of 2017 and the learned Judicial Magistrate First Class, Deesa, passed an order to issue process calling upon all the three persons shown as accused in the said Criminal Case. 4.5 It is the case of the applicant herein that the cheque in question was issued by accused No.3 viz. Hitesh Sharma, being cheque No.000068 dated 16.11.2016 drawn on HDFC Bank, Vastrapur Branch, Ahmedabad in favour of the opponent No.1 - complainant. The cheque issued by Kapil Corporation dated 20.09.2015 is placed as documentary evidence in support of the criminal case for which the applicant had instructed his bank being Kalupur Commercial Bank, Isanpur Branch to stop the payment of the said cheque, is also produced as documentary evidence, though no legal proceedings were initiated by the opponent No.1 - complainant at the relevant point of time, and that time to initiate the action under Section 138 of Negotiable Instruments Act, 1881 lapsed in the year 2015 itself. 5. Submissions on behalf of the Applicant :- 5.1 Ms. Hetvi Sancheti, the learned advocate appearing for the applicant submitted that the opponent No.1 - complainant has instituted the present criminal case for which the applicant has not issued a cheque. 5.2 Ms. Hetvi Sancheti, the learned advocate submitted that it is alleged by the opponent No.1 - complainant that the goods were sent to Kapil Corporation of which the applicant herein is proprietor however, from the contentions in the criminal case, it is clear that the goods were not delivered at Kapil Corporation of which the applicant herein is proprietor. 5.3 The applicant herein had instructed to his bank to stop the payment cheque issued to the opponent No.1 - complainant in the year 2015 and for which no legal proceedings have been initiated by the opponent No.1 - complainant. 5.4 Ms. 5.3 The applicant herein had instructed to his bank to stop the payment cheque issued to the opponent No.1 - complainant in the year 2015 and for which no legal proceedings have been initiated by the opponent No.1 - complainant. 5.4 Ms. Hetvi Sancheti, the learned advocate appearing for the applicant submitted that the cheque in question was issued by Hitesh - accused No.3 who happens to be the elder brother of the applicant and the said cheque was issued by accused No.3- Hitesh from his personal account. 5.5 Ms. Hetvi Sancheti, the learned advocate appearing for the applicant submitted bare reading of the criminal Case No.932 of 2017 it clearly transpired that the applicant had neither placed the order nor received goods from opponent No.1 - complainant and that there was no commercial transaction between the applicant and the opponent No.1 - complainant and the applicant even otherwise was not bound to make any payment to the opponent No.1 - complainant. 5.6 Ms. Hetvi Sancheti, the learned advocate appearing for the applicant submitted that the cheque neither been issued by the applicant herein and nor been signed by the applicant herein. The impugned criminal complaint being Criminal Case No.932 of 2017 wherein process has been issued against the applicant herein by order dated 09.05.2017 is required to be quashed and set aside. 5.7 Ms. Hetvi Sancheti, the learned advocate appearing for the applicant lastly submitted that to quash the proceedings arising out of Criminal Case No.932 of 2017 pending before the Court of learned Judicial Magistrate First Class, Deesa, District : Banaskantha. 6. Submission of behalf of the opponent No.1 :- 6.1 Mr. Nishit Gandhi, the learned advocate appearing for the respondent No.1-complainant submitted that the applicant herein being proprietor of Kapil Corporation has vicariously liable for the cheque which was signed by the accused No.3 Hitesh S. Sharma and was duly responsible for the cheque which was returned for 'insufficient fund' amounting to Rs.8,70,000/-. Mr. Nishit Gandhi, the learned advocate appearing for the respondent No.1 submitted that the applicant be relegated to the Court below and that matter be proceeded on merits against the applicants herein. 6.2 Mr. Mr. Nishit Gandhi, the learned advocate appearing for the respondent No.1 submitted that the applicant be relegated to the Court below and that matter be proceeded on merits against the applicants herein. 6.2 Mr. Nishit Gandhi, the learned advocate submitted that there is presumption of legally enforceable debt since the cheque in question was issued for delivery of goods and also stated that since there was no reply to the notice issued by the complainant presumption under Section 138 of the Negotiable Instruments Act would come into play when there is initial admission of cheque. 7. At this stage, it is apposite to refer to the following position of law :- (a) In the case of Jugesh Sehgal Versus Shamsher Singh Gogi, reported in (2009) 14 SCC 683 , paragraphs 9 to 21 read thus :- "9. Per contra, learned counsel appearing on behalf of the complainant, supported the impugned order and submitted that having issued the cheque to the complainant under his signatures by making a false representation that the account was maintained by him, the appellant had duped the complainant. 10. It was contended that at this juncture the question whether or not the cheque was issued by the appellant is pre-mature as the same would be determined only after the evidence has been led by the parties. Learned counsel thus, argued that the appellant having played a fraud on the complainant, does not deserve any relief. 11. It is true that Section 138 of the Act was enacted to punish unscrupulous drawers of cheques who, though purport to discharge their liability by issuing cheque, have no intention of really doing so, yet to fasten a criminal liability under the said provision, necessary ingredients of the Section are to be satisfied. 12. Section 138 of the Act reads as follows: "138. 12. Section 138 of the Act reads as follows: "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 agreement 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 be extended 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. 13. Explanation.--For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability. 13. It is manifest that to constitute an offence under Section 138 of the Act, the following ingredients are required to be fulfilled: (i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account; (ii) The cheque should have been issued for the discharge, in whole or in part, of any debt or other liability; (iii) that 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; (iv) that cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank; (v) the payee or the holder in due course of the cheque 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 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; (vi) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice; 14. Being cumulative, it is only when all the afore-mentioned ingredients are satisfied that the person who had drawn the cheque can be deemed to have committed an offence under Section 138 of the Act. 15. In the case before us, it is clear from the facts, briefly noted above, and in para 3 of the complaint as extracted, that on receipt of the return memo from the bank, the complainant is stated to have realized that the dishonoured cheque was issued from an account which was not maintained by accused No.1--the appellant herein, but by one Shilpa Chaudhary. As a matter of fact and perhaps having gained the said knowledge, on 20th January, 2001, the complainant filed an FIR against all the accused for offences under Sections 420, 467, 468, 471, 406 of the Indian Penal Code (IPC). Thus, there is hardly any dispute that the cheque, subject matter of the complaint under Section 138 of the Act, had not been drawn by the appellant on an account maintained by him in the Indian Bank, Sonepat branch. That being so, there is little doubt that the very first ingredient of Section 138 of the Act, enumerated above, is not satisfied and consequently the case against the appellant for having committed an offence under Section 138 of the Act cannot be proved. 16. The next question for consideration is whether or not in the light of the afore-mentioned factual position, as projected in the complaint itself, it was a fit case where the High Court should have exercised its jurisdiction under Section 482 of the Code? 17. The scope and ambit of powers of the High Court under Section 482 of the Code has been enunciated and reiterated by this Court in a series of decisions and several circumstances under which the High Court can exercise jurisdiction in quashing proceedings have been enumerated. Therefore, it is unnecessary to burden the judgment by making reference to all the decisions on the point. It would suffice to state that though the powers possessed by the High Courts under the said provision are very wide but these should be exercised in appropriate cases, ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. 18. 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. [See: Janata Dal Vs. H.S. Chowdhary & Ors., (1992) 4 SCC 305 , Kurukshetra University & Anr. Vs. State of Haryana & Anr., (1977) 4 SCC 451 , State of Haryana & Ors. Vs. [See: Janata Dal Vs. H.S. Chowdhary & Ors., (1992) 4 SCC 305 , Kurukshetra University & Anr. Vs. State of Haryana & Anr., (1977) 4 SCC 451 , State of Haryana & Ors. Vs. Bhajan Lal & Ors., 1992 Supp (1) SCC 335. 19. Although in Bhajan Lal's case (supra), the court by way of illustration, formulated as many as seven categories of cases, wherein the extra-ordinary power under the aforestated provisions could be exercised by the High Court to prevent abuse of process of the court yet 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 the circumstances in which such power could be exercised. 20. The purport of the expression "rarest of rare cases" has been explained very recently in Som Mittal Vs. Government of Karnataka, (2008) 3 SCC 574 . Speaking for the three-Judge Bench, Hon'ble the Chief Justice said: "9. When the words 'rarest of rare cases' are used after the words 'sparingly and with circumspection' while describing the scope of Section 482, those words merely emphasize and reiterate what is intended to be conveyed by the words 'sparingly and with circumspection'. They mean that the power under Section 482 to quash proceedings should not be used mechanically or routinely, but with care and caution, only when a clear case for quashing is made out and failure to interfere would lead to a miscarriage of justice. The expression "rarest of rare cases" is not used in the sense in which it is used with reference to punishment for offences under Section 302 IPC, but to emphasize that the power under Section 482 Cr.P.C. to quash the FIR or criminal proceedings should be used sparingly and with circumspection." 21. Bearing in mind the above legal position, we are of the opinion that it was a fit case where the High Court, in exercise of its jurisdiction under Section 482 of the Code, should have quashed the complaint under Section 138 of the Act." (b) In the case of Aparna A. Shah Versus Sheth Developers Private Limited, reported in (2013) 8 SCC 71 , paragraphs 27 to 28 read thus :- "27) In the light of the above discussion, we hold that under Section 138 of the Act, it is only the drawer of the cheque who can be prosecuted. In the case on hand, admittedly, the appellant is not a drawer of the cheque and she has not signed the same. A copy of the cheque was brought to our notice, though it contains name of the appellant and her husband, the fact remains that her husband alone put his signature. In addition to the same, a bare reading of the complaint as also the affidavit of examination-in- chief of the complainant and a bare look at the cheque would show that the appellant has not signed the cheque. 28) We also hold that under Section 138 of the N.I. Act, in case of issuance of cheque from joint accounts, a joint account holder cannot be prosecuted unless the cheque has been signed by each and every person who is a joint account holder. The said principle is an exception to Section 141 of the N.I. Act which would have no application in the case on hand. The proceedings filed under Section 138 cannot be used as an arm twisting tactics to recover the amount allegedly due from the appellant. It cannot be said that the complainant has no remedy against the appellant but certainly not under Section 138. The culpability attached to dishonour of a cheque can, in no case except in case of Section 141 of the N.I. Act be extended to those on whose behalf the cheque is issued. This Court reiterates that it is only the drawer of the cheque who can be made an accused in any proceeding under Section 138 of the Act. Even the High Court has specifically recorded the stand of the appellant that she was not the signatory of the cheque but rejected the contention that the amount was not due and payable by her solely on the ground that the trial is in progress. It is to be noted that only after issuance of process, a person can approach the High Court seeking quashing of the same on various grounds available to him. Accordingly, the High Court was clearly wrong in holding that the prayer of the appellant cannot even be considered. Further, the High Court itself has directed the Magistrate to carry out the process of admission/denial of documents. Accordingly, the High Court was clearly wrong in holding that the prayer of the appellant cannot even be considered. Further, the High Court itself has directed the Magistrate to carry out the process of admission/denial of documents. In such circumstances, it cannot be concluded that the trial is in advanced stage." (c) In the case of Alka Khandu Avhad Versus Amar Syamprasad Mishra and Others, reported in AIR (2021) SC 1616, paragraphs 6 to 8 read thus :- "6. We have heard learned counsel appearing on behalf of the respective parties at length, considered material on record and also considered the averments and allegations in the complaint. It emerges from the record that the dishonoured cheque was issued by original accused No. 1 husband of the appellant. It was drawn from the bank account of original accused No. 1. The dishonoured cheque was signed by original accused No. 1. Therefore, the dishonoured cheque was signed by original accused No. 1 and it was drawn on the bank account of original accused No. 1. The appellant here-in-original accused No. 2 is neither the signatory to the cheque nor the dishonoured cheque was drawn from her bank account. That the account in question was not a joint account. In the light of the aforesaid facts, it is required to be considered whether the appellant herein original accused No. 2 can be prosecuted for the offence punishable under Section 138 r/w Section 141 of the NI Act? 7. On a fair reading of Section 138 of the NI Act, before a person can be prosecuted, the following conditions are required to be satisfied: 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. Therefore, a person who is the signatory to the cheque and the cheque is drawn by that person on an account maintained by him and the cheque has been issued for the discharge, in whole or in part, of any debt or other liability and the said cheque has been returned by the bank unpaid, such person can be said to have committed an offence. Section 138 of the NI Act does not speak about the joint liability. Even in case of a joint liability, in case of individual persons, a person other than a person who has drawn the cheque on an account maintained by him, cannot be prosecuted for the offence under Section 138 of the NI Act. A person might have been jointly liable to pay the debt, but if such a person who might have been liable to pay the debt jointly, cannot be prosecuted unless the bank account is jointly maintained and that he was a signatory to the cheque. 8. Now, so far as the case on behalf of the original complainant that the appellant herein original accused No. 2 can be convicted with the aid of Section 141 of the NI Act is concerned, the aforesaid has no substance. 8.1 Section 141 of the NI Act is relating to the offence by companies and it cannot be made applicable to the individuals. Learned counsel appearing on behalf of the original complainant has submitted that Company means any body corporate and includes, a firm or other association of individuals and therefore in case of a joint liability of two or more persons it will fall within other association of individuals and therefore with the aid of Section 141 of the NI Act, the appellant who is jointly liable to pay the debt, can be prosecuted. The aforesaid cannot be accepted. Two private individuals cannot be said to be other association of individuals. Therefore, there is no question of invoking Section 141 of the NI Act against the appellant, as the liability is the individual liability (may be a joint liabilities), but cannot be said to be the offence committed by a company or by it corporate or firm or other associations of individuals. The appellant herein is neither a Director nor a partner in any firm who has issued the cheque. The appellant herein is neither a Director nor a partner in any firm who has issued the cheque. Therefore, even the appellant cannot be convicted with the aid of Section 141 of the NI Act. Therefore, the High Court has committed a grave error in not quashing the complaint against the appellant for the offence punishable under Section 138 r/w Section 141 of the NI Act. The criminal complaint filed against the appellant for the offence punishable under Section 138 r/w Section 141 of the NI Act, therefore, can be said to be abuse of process of law and therefore the same is required to be quashed and set aside." 8. The facts that emerge for the consideration of the present disputes are that the cheque in question which is duly produced at page 25 being cheque No.000068 dated 16.11.2016 drawn in favor of the Rama Gum Industries Limited was signed by respondent No.3 i.e. Hitesh S. Sharma accused No.3 in Criminal Case No.932 of 2017. Statutory notice under Section 138 of the N.I. Act came to be issued to all the accused by the opponent No.1 - complainant on 11.02.2017. The said notice appears not to have been replied by the respondents accused which resulted into filing of the impugned complaint being Criminal Case No.932 of 2017. 9. In view of the settled legal position of law as stated above and facts of the present case, the cheque in question dated 16.11.2016 being cheque No.000068 was signed by the accused No.3 from his personal account which came to be returned with an endorsement 'insufficient fund' and on 11.01.2017 on re-depositing the same cheque in HDFC Bank branch which came to be returned for 'insufficient fund' on 13.01.2017. The respondent No.1 cannot be held to be liable for the same. The applicant herein - accused No.2 not being the signatory to the cheque cannot be held to be liable for the cheque which was issued by the accused No.3 and which came to be returned with endorsement "insufficient fund". The impugned complaint which is duly produced on record at page 16, Annexure-A being Criminal Case No.23/2017 is also instituted under the provisions of Section 138 of the Negotiable Instruments Act and the cheque in question have also been drawn by the accused No.3 in favour of the Rama Gum Industries Limited in his personal capacity. 10. The impugned complaint which is duly produced on record at page 16, Annexure-A being Criminal Case No.23/2017 is also instituted under the provisions of Section 138 of the Negotiable Instruments Act and the cheque in question have also been drawn by the accused No.3 in favour of the Rama Gum Industries Limited in his personal capacity. 10. On both the counts, the application preferred by the applicant requires consideration and the applicant cannot be held to be liable for the cheque which was issued by the accused No.3 for an amount of Rs.8,70,000/- which was issued from the personal account of accused No.3. 11. For the reasons stated above, the application succeed. The impugned complaint being Criminal Case No.932/2017 pending before the learned Judicial Magistrate First Class Deesa, District Banaskantha, is quashed and set aside qua the applicant herein. Proceedings to continue qua the rest of the accused. 12. The present application stands allowed, accordingly. Rule is made absolute.