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2022 DIGILAW 1290 (AP)

P. Bhavana Rao v. State of Andhra Pradesh

2022-11-15

K.SREENIVASA REDDY

body2022
JUDGMENT 1. This Criminal Petition, under Sec. 482 of the Code of Criminal Procedure 1973, is filed by A1/the petitioner herein to quash the proceedings in C.C.No.5836 of 2021 on the file of the Court of the V Additional Junior Civil Judge, Guntur. 2. Brief facts of the case are as follows; The respondent No.2 herein filed a complaint against the petitioner and another for the offence punishable under Sec. 138 of the Negotiable Instruments Act, 1881 (for short "the N.I. Act") in the Court below. It is stated in the said complaint that complainant is a Trust, registered under the Indian Trust Act, 1882, bearing No.276/1991-92, dtd. 4/7/1991 and is running Medical Education Institutions. The complainant is represented by its Director, who is authorized to prosecute the complaint against the accused on behalf of the complainant-Trust. The Accused No.2 representing himself as General Power of Attorney (G.P.A.) holder of Accused No.1 approached Sri Katuri Subba Rao, Managing Trustee of the Complainant-Trust and offered to sell the land belonging to the Accused No.1 admeasuring Ac.3.23 guntas situated at Survey No.145/2 of Pattandur Agrahara Village, K.R.Puram Hubli, Bangalore East Taluk. A Resolution passed by the Board of Trustees gave approval for purchase of the said property by the complainant. In pursuance of the said offer made by the Accused No.2 on behalf of the Accused No.1, the complainant-Trust communicated its acceptance for purchasing the said property. The Accused No.2 in the capacity of GPA holder of Accused No.1 executed an Agreement of Sale, dtd. 5/11/2019 in favour of the Complainant-Trust for a consideration of Rs.75, 00, 00, 000.00 (Rupees Seventy Five Crores Only). The Complainant-Trust paid an amount of Rs.10, 00, 00, 000.00 (Rupees Ten Crores only) on 25/10/2019 and another sum of Rs.10, 00, 00, 000.00 (Rupees Ten Crores only) on 13/11/2019 through RTGS Funds Transfer system to the account of the Accused No.2 against receipt issued by the Accused No.2. The Complainant-Trust paid an amount of Rs.10, 00, 00, 000.00 (Rupees Ten Crores only) on 25/10/2019 and another sum of Rs.10, 00, 00, 000.00 (Rupees Ten Crores only) on 13/11/2019 through RTGS Funds Transfer system to the account of the Accused No.2 against receipt issued by the Accused No.2. The Accused No.1 being owner of the said property assured the complainant-Trust through her father who is her General Power of Attorney holder and who is the Accused No.2, that she would procure the adjacent land of Ac.2.00 also, so that her land of Ac.3.00 agreed to be sold under the Agreement of Sale and adjacent land of Ac.2.00 would be put together Ac.5.00 and as such the complainant-Trust would be eligible for obtaining sanction/permission from authorities to start Dental college. The complainant agreed to enter into the Agreement of Sale with the above condition to be fulfilled by the Accused and in case the accused could not procure the additional land, the Agreement of Sale" shall stand cancelled and the Accused shall return the advances paid with interest at the rate of 14% per annum from the date of receipt of advance amount till the date of payment. The Accused No.1 directly or through the Accused No.2 failed to convince the neighbouring land owners of the property agreed to be sold under the above referred Agreement of Sale, to sell their land within 120 days from the date of agreement as per Clause No.9 of the Agreement of Sale. Therefore they committed breach of the primary condition stipulated in the Agreement of Sale. Thereby both the accused became liable to refund the advance sale consideration received by them with interest. On repeated follow-ups and demands by the officials of the complainant, the Accused No.2 issued five (5) cheques of his personal account on five different dates between 18/3/2021 to 28/3/2021 for a total sum of Rs.20, 00, 00, 000.00 (Rupees Twenty Crores Only) towards refund of the amount paid by the complainant. The complainant then presented one of the said cheques of Rs.3.00 crores for collection on 23/4/2021 through its banker Equitas Small Finance bank, Guntur Branch, Guntur and the said cheque was returned unpaid on 26/4/2021 with an endorsement Funds Insufficient". The complainant had represented the said cheque once again on 11/6/2021, thinking that the said cheque was returned due to inadvertence at the behest of the bank officials. The complainant had represented the said cheque once again on 11/6/2021, thinking that the said cheque was returned due to inadvertence at the behest of the bank officials. On 14/6/2021, the cheque was again returned with an endorsement funds insufficient". After complying with the essential conditions of Sec. 138 of Negotiable Instruments, Act, the complainant filed the complaint against the petitioner (A1) and the GPA holder of A1 as A2 for the offence punishable under Sec. 138 of the Negotiable Instruments Act, 1881 (for short N.I. Act") and the same was taken on file by the learned Magistrate and numbered as C.C.No.5836 of 2021. 3. Heard the learned counsel for the petitioner, learned counsel for the respondent No.2 and the learned Special Assistant Public Prosecutor for the respondent No.1 4. Learned counsel for the petitioner contended that even if the entire accusations are accepted as true, prima facie the offence under Sec. 138 of the N.I. Act is not attracted as against the petitioner herein for the reason that the petitioner is not a signatory to the alleged subject cheque. The person who issued the cheque on behalf of the petitioner had drawn the cheques only for the sake of security. Therefore one of the essential ingredients under Sec. 138 of the N.I. Act has not been satisfied in the present case. 5. He further submitted that so as to attract the offence in terms of Sec. 138 of the N.I. Act, it must be shown that a person must have signed the cheque and handed over the same to the payee. Therefore, he prays to quash the proceedings against the petitioner herein. 6. Learned counsel for the respondent No.2 submitted that a person who issued the cheque is A2 and he is none else than father and GPA holder of the petitioner. The land sought to be purchased by the complainant is in the name of the petitioner herein. When once the cheque is signed by the Accused No.2 and has been issued to the complainant by acting as GPA holder of the Accused No.1, the complaint filed by the complainant is maintainable against the petitioner herein. Hence, he prays to dismiss the petition. 6. Perused the record. 7. Admittedly, there is an agreement entered into between the petitioner and the respondent No.2 on 5/11/2019. Hence, he prays to dismiss the petition. 6. Perused the record. 7. Admittedly, there is an agreement entered into between the petitioner and the respondent No.2 on 5/11/2019. The petitioner and another entered into an agreement with the respondent No.2 for sale of Ac.3.00 of land of the petitioner and adjacent land of Ac.2.00 and as such it becomes contiguous plot of Ac.5.00 so as to enable the respondent No.2 to establish a Dental College in the entire Ac.5.00 cents of land. In fact, clause No.6 of the agreement also contemplates that in case the petitioner and A2 could not procure the others" adjacent land of Ac.2.00, the Agreement of Sale shall stand cancelled and the petitioner and A2 shall return the advance amount paid with 14 per cent per annum interest from the date of receipt of advance amount till the date of payment. It is pertinent to mention here that the Complainant-Trust had paid an amount of Rs.20, 00, 00, 000.00 (Rupees Twenty Crores only) to the account maintained by the Accused No.2 with Dhana Lakshmi Bank, M.G. Road Branch, Bangalore through RTGS Funds Transfer System from its Banker namely Equitas Small Finance Bank, Arundalpet Branch, Guntur on two different dates. The Accused could not convince the neighbouring land owners of the property within the stipulated period of 120 days. Therefore the petitioner and A2 committed breach of primary conditions stipulated in the agreement of sale. Since the accused failed to comply with the conditions stipulated under the agreement of sale, the Accused No.2 had issued five (5) cheques acting as agent of the Accused No.1 on five different dates from 18/3/2021 to 28/3/2021 for total sum of Rs.20, 00, 00, 000.00 (Rupees Twenty Crores only) towards refund of the principal amount paid by the complainant towards advance. After complying with the essential conditions of Sec. 138 of the N.I. Act, the complainant filed the complaint against the petitioner and another and the same was taken on file by the learned Magistrate Court. 8. Sec. 138 of the Negotiable Instruments Act, 1881, reads as follows; [ 138 Dishonour of cheque for insufficiency, etc., of funds in the account. After complying with the essential conditions of Sec. 138 of the N.I. Act, the complainant filed the complaint against the petitioner and another and the same was taken on file by the learned Magistrate Court. 8. Sec. 138 of the Negotiable Instruments Act, 1881, 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 19 [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 sec. 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, 20 [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 sec., -debt or other liability? means a legally enforceable debt or other liability.] 9. Explanation.- For the purposes of this sec., -debt or other liability? means a legally enforceable debt or other liability.] 9. The essential ingredient of Sec. 138 of the N.I. Act is that the cheque drawn should be in discharge of some legally enforceable debt or liability. A plain reading of the aforesaid provision goes to show that a person who is signatory to the cheque and the cheque drawn by that person on account maintained by him and the cheque issued for the discharge of either 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 the offence under Sec. 138 of the N.I.Act. It is pertinent to mention here that Sec. 138 of the N.I. Act does not speak about the joint liability. Apropos unless both the persons are liable to pay debt jointly, they cannot be prosecuted unless when they maintained joint account. 10. The Explanation appended to Sec. 138 of the Negotiable Instruments Act, 1881 gives the meaning of the expression "debt or other liability" for the purpose of Sec. 138. This expression means a legally enforceable debt or other liability. Sec. 138 treats dishonoured cheque as an offence, if the cheque has been issued in discharge of any debt or other liability. The Explanation leaves no manner of doubt, that to attract an offence under Sec. 138, there should be a legally enforceable debt or other liability subsisting on the date of the drawal of the cheque. In other words, drawal of the cheque in discharge of an existing or past debt or liability is sine qua non for bringing an offence under Sec. 138 of the N.I. Act. If a cheque is issued as an advance payment for purchase of the goods and for any reason purchase order is not carried to its logical conclusion either because of its cancellation or otherwise, and material or goods for which purchase order was placed is not supplied, the cheque cannot be held to have been drawn for an existing debt or liability. The payment by cheque in the nature of advance payment indicates that at the time of drawal of cheque, there was no existing liability. 11. The payment by cheque in the nature of advance payment indicates that at the time of drawal of cheque, there was no existing liability. 11. Learned counsel for the petitioner relied upon the judgment of the Hon'ble Supreme Court in ALKA KHANDU AVHAD VS AMAR SYAM PRASAD MISHRA AND ANOTHER, (2021) 4 Supreme Court Cases 675. wherein it is held, -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. Sec. 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 Sec. 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. 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 Sec. 141 of the NI Act is concerned, the aforesaid has no substance. Sec. 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 Sec. 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?. and therefore with the aid of Sec. 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 Sec. 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. Therefore, even the appellant cannot be convicted with the aid of Sec. 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 Sec. 138 r/w Sec. 141 of the NI Act. The criminal complaint filed against the appellant for the offence punishable under Sec. 138 r/w Sec. 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. In view of the above and for the reasons stated above, the present appeal succeeds. The impugned judgment and order dtd. 21/8/2019 passed by the High Court in Criminal Writ Petition No. 2595 of 2019 refusing to quash the criminal complaint against the appellant for the offence punishable under Sec. 138 read with Sec. 141 of the NI Act is hereby quashed and set aside. The complaint case pending in the Court of the learned Metropolitan Magistrate filed by respondent No. 1 - original complainant being C.C. No. 2802/SS/2016 is hereby quashed and set aside. The appeal is allowed accordingly.? 12. Learned counsel for the petitioner further relied on the judgment of the Telangana High Court in KODAM DANALAKSHMI VS STATE OF TELANGANA, 2021 SCC Online TS 1431. wherein it is held, - In Mrs. Aparna A. Shah's case (2 supra), cited by the learned counsel for petitioner/A.2, the Hon'ble Apex Court took the view that under Sec. 138 of the N.I. Act, it is only the drawer of the cheque who can be proceeded. wherein it is held, - In Mrs. Aparna A. Shah's case (2 supra), cited by the learned counsel for petitioner/A.2, the Hon'ble Apex Court took the view that under Sec. 138 of the N.I. Act, it is only the drawer of the cheque who can be proceeded. In the said case, the husband had drawn the cheque on the account, which was being jointly maintained by him and his wife. The Hon'ble Supreme Court held that in case of issuance of a cheque from joint account, a joint account holder cannot be prosecuted unless the cheque has been signed by each and every person who has a joint account holder. The Hon'ble Supreme Court observed as follows: -Para 23 : We also hold that under Sec. 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 Sec. 141 of the N.I. Act which would have no application in the case on hand. The proceedings filed under Sec. 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 Sec. 138. The culpability attached to dishonour of a cheque can, in no case -except in case of Sec. 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 Sec. 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.? 13. In the instant case, it is evident from the entire material placed on record, particularly, the complaints filed by the respondent No. 2/complainant under Sec. 138 of N.I. Act r/w Sec.200 Cr.P.C, the petitioner/A.2 is merely a joint account holder and she is not the signatory to the subject cheques. On the other hand, it is culled out from the record that though the account relating to the disputed cheques is a joint account, only one signature, which appears to be of A.1, are seen on those disputed cheques. Penal provisions should be construed strictly, but not in a routine/casual manner. The words used in Sec. 138 of N.I. Act that -such person shall be deemed to have committed an offence? refers to a person who has drawn the cheque, but not any other person, except the contingencies mentioned under Sec. 141 of the N.I. Act. In view of the same, the submission made by the learned counsel for the petitioner/A.2 that the petitioner/A.2, who is a mere joint account holder but not a signatory to the subject cheque, cannot be proceeded under Sec. 138 of N.I. Act, merits consideration, inasmuch as a joint account holder cannot be prosecuted, unless and until he/she is a signatory to the subject cheque. Further, the commencement of the trial in the subject C.Cs cannot be a ground to continue the proceedings against the petitioner/A.2. The Courts below erred in taking cognizance against the petitioner/A.2, particularly, when she is not a signatory to the disputed cheques. So the contentions raised on behalf of the respondents do not merit consideration. In view of these circumstances, when no ingredients under Sec. 138 of N.I. Act are made out against the petitioner/A.2, continuation of the subject proceedings against the petitioner/A.2 is abuse of process of law. Therefore, the proceedings in the subject C.Cs against the petitioner/A.2, are liable to be quashed." 13. He also relied upon the judgment of Hon'ble Apex Court in Aparna A. Shah Vs. M/s Sheth Developers Pvt., Ltd., and another, (2013) 8 SCC 71 . Therefore, the proceedings in the subject C.Cs against the petitioner/A.2, are liable to be quashed." 13. He also relied upon the judgment of Hon'ble Apex Court in Aparna A. Shah Vs. M/s Sheth Developers Pvt., Ltd., and another, (2013) 8 SCC 71 . wherein it is held, 22) In the light of the above discussion, we hold that under Sec. 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. 23) We also hold that under Sec. 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 Sec. 141 of the N.I. Act which would have no application in the case on hand. The proceedings filed under Sec. 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 Sec. 138. The culpability attached to dishonour of a cheque can, in no case -except in case of Sec. 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 Sec. 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. 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. In such circumstances, it cannot be concluded that the trial is in advanced stage.? 14. Learned counsel for the respondent No.2 submitted that the person who issued the cheque i.e. A2, is the GPA holder of the petitioner. The land sought to be purchased by the complainant is standing in the name of the petitioner herein. He further submitted that the petitioner gave a GPA in favour of the Accused No.2 who is none other than the father of the petitioner. When once the cheque signed by the Accused No.2 has been issued to the complainant acting as GPA holder, the complaint filed by the complainant is maintainable. 15. Learned counsel for the respondent No.2 relied upon the judgment of the Hon'ble Supreme Court in Criminal Appeal No. 694-695 of 2022, Rathish Babu Unnikrishnan Vs. State (Govt. of NCT of Delhi) and another, wherein it is held, -At any rate, whenever facts are disputed the truth should be allowed to emerge by weighing the evidence. On this aspect, we may benefit by referring to the ratio in Rajeshbhai Muljibhai Patel vs. State of Gujarat5 where the following pertinent opinion was given by Justice R. Banumathi: - -22. .............. When disputed questions of facts are involved which need to be adjudicated after the parties adduce evidence, the complaint under Sec. 138 of the NI Act ought not to have been quashed by the High Court by taking recourse to Sec. 482 CrPC. Though, the Court has the power to quash the criminal complaint filed under Sec. 138 of the NI Act on the legal issues like limitation, etc. Though, the Court has the power to quash the criminal complaint filed under Sec. 138 of the NI Act on the legal issues like limitation, etc. criminal complaint filed under Sec. 138 of the NI Act against Yogeshbhai ought not to have been quashed 4 (2010) 11 SCC 441 5 (2020) 3 SCC 794 merely on the ground that there are inter se disputes between Appellant 3 and Respondent 2. Without keeping in view the statutory presumption raised under Sec. 139 of the NI Act, the High Court, in our view, committed a serious error in quashing the criminal complaint in CC No. 367 of 2016 filed under Sec. 138 of the NI Act.? 13. Bearing in mind the principles for exercise of jurisdiction in a proceeding for quashing, let us now turn to the materials in this case. On careful reading of the complaint and the order passed by the Magistrate, what is discernible is that a possible view is taken that the cheques drawn were, in discharge of a debt for purchase of shares. In any case, when there is legal presumption, it would not be judicious for the quashing Court to carry out a detailed enquiry on the facts alleged, without first permitting the trial Court to evaluate the evidence of the parties. The quashing Court should not take upon itself, the burden of separating the wheat from the chaff where facts are contested. To say it differently, the quashing proceedings must not become an expedition into the merits of factual dispute, so as to conclusively vindicate either the complainant or the defence. 14. The parameters for invoking the inherent jurisdiction of the Court to quash the criminal proceedings under S.482 CrPC, have been spelled out by Justice S. Ratnavel Pandian for the two judges' bench in State of Haryana v. Bhajan Lal6, and the suggested precautionary principles serve as good law even today, for invocation of power under Sec. 482 of the Cr.P.C. -103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.? 15. In the impugned judgment, the learned Judge had rightly relied upon the opinion of Justice J.S.Khehar for a Division Bench in Rajiv Thapar (supra), which succinctly express the following relevant parameters to be considered by the quashing Court, at the stage of issuing process, committal, or framing of charges, 6 AIR 1992 SC 604 -28. The High Court, in exercise of its jurisdiction under Sec. 482 CrPC, must make a just and rightful choice. This is not a stage of evaluating the truthfulness or otherwise of the allegations levelled by the prosecution/ complainant against the accused. Likewise, it is not a stage for determining how weighty the defences raised on behalf of the accused are. Even if the accused is successful in showing some suspicion or doubt, in the allegations levelled by the prosecution/ complainant, it would be impermissible to discharge the accused before trial. This is so because it would result in giving finality to the accusations levelled by the prosecution/complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same.? 16. He also relied upon the judgment of the Hon"ble Supreme Court in S.P.Mani and Mohan Dairy Vs. Dr. Snehalatha Elangovan, 2022 (4) Crimes 67. This is so because it would result in giving finality to the accusations levelled by the prosecution/complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same.? 16. He also relied upon the judgment of the Hon"ble Supreme Court in S.P.Mani and Mohan Dairy Vs. Dr. Snehalatha Elangovan, 2022 (4) Crimes 67. wherein it is held, -In Gunmala Sales Private Limited (supra), this Court after an exhaustive review of its earlier decisions on Sec. 141 of the NI Act, summarized its conclusion as under: -a) Once in a complaint filed under Sec. 138 read with Sec. 141 of the NI Act the basic averment is made that the Director was in charge of and responsible for the conduct of the business of the company at the relevant time when the offence was committed, the Magistrate can issue process against such Director; b) If a petition is filed under Sec. 482 of the Code for quashing of such a complaint by the Director, the High Court may, in the facts of a particular case, on an overall reading of the complaint, refuse to quash the complaint because the complaint contains the basic averment which is sufficient to make out a case against the Director; c) In the facts of a given case, on an overall reading of the complaint, the High Court may, despite the presence of the basic averment, quash the complaint because of the absence of more particulars about role of the Director in the complaint. It may do so having come across some unimpeachable, incontrovertible evidence which is beyond suspicion or doubt or totally acceptable circumstances which may clearly indicate that the Director could not have been concerned with the issuance of cheques and asking him to stand the trial would be abuse of the process of the court. Despite the presence of basic averment, it may come to a conclusion that no case is made out against the Director. Take for instance a case of a Director suffering from a terminal illness who was bedridden at the relevant time or a Director who had resigned long before issuance of cheques. In such cases, if the High Court is convinced that prosecuting such a Director is merely an arm twisting tactics, the High Court may quash the proceedings. Take for instance a case of a Director suffering from a terminal illness who was bedridden at the relevant time or a Director who had resigned long before issuance of cheques. In such cases, if the High Court is convinced that prosecuting such a Director is merely an arm twisting tactics, the High Court may quash the proceedings. It bears repetition to state that to establish such case unimpeachable, incontrovertible evidence which is beyond suspicion or doubt or some totally acceptable circumstances will have to be brought to the notice of the High Court. Such cases may be few and far between but the possibility of such a case being there cannot be ruled out. In the absence of such evidence or circumstances, complaint cannot be quashed; d) No restriction can be placed on the High Court's powers under Sec. 482 of the Code. The High Court always uses and must use this power sparingly and with great circumspection to prevent inter alia the abuse of the process of the Court. There are no fixed formulae to be followed by the High Court in this regard and the exercise of this power depends upon the facts and circumstances of each case. The High Court at that stage does not conduct a mini trial or roving inquiry, but nothing prevents it from taking unimpeachable evidence or totally acceptable circumstances into account which may lead it to conclude that no trial is necessary qua a particular Director.? 44. We may also examine this appeal from a different angle. It is not in dispute, as noted above, that no reply was given by the respondent to the statutory notice served upon her by the appellant. In the proceedings of the present type, it is essential for the person to whom statutory notice is issued under Sec. 138 of the NI Act to give an appropriate reply. The person concerned is expected to clarify his or her stance. If the person concerned has some unimpeachable and incontrovertible material to establish that he or she has no role to play in the affairs of the company/firm, then such material should be highlighted in the reply to the notice as a foundation. If any such foundation is laid, the picture would be more clear before the eyes of the complainant. If the person concerned has some unimpeachable and incontrovertible material to establish that he or she has no role to play in the affairs of the company/firm, then such material should be highlighted in the reply to the notice as a foundation. If any such foundation is laid, the picture would be more clear before the eyes of the complainant. The complainant would come to know as to why the person to whom he has issued notice says that he is not responsible for the dishonour of the cheque. Had the respondent herein given appropriate reply highlighting whatever she has sought to highlight before us then probably the complainant would have undertaken further enquiry and would have tried to find out what was the legal status of the firm on the date of the commission of the offence and what was the status of the respondent in the firm. The object of notice before the filing of the complaint is not just to give a chance to the drawer of the cheque to rectify his omission to make his stance clear so far as his liability under Sec. 138 of the NI Act is concerned.? 17. The above judgments submitted by the learned counsel for the respondent No.2 are not applicable to the present facts and circumstances of the case. Sec. 141 of the N.I. Act is not attracted to the present case for the reason that the two individuals who are A1 and A2 are not partners in a partnership or firm or company. Keeping in view, the allegations made in the complaint, there is no need to dilate in regard to the definition of a "company" or a "partnership firm" as envisaged under Sec. 34 of the Companies Act, 1956 and Sec. 4 of the Partnership Act, 1932 respectively, 18. A Constitution Bench of this Court in S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla, [A.I.R. 2005 SC 3512]. furthermore categorically stated that the complaint petition must contain the requisite averments to bring about a case within the purview of Sec. 141 of the Act so as to make some persons other than company, vicariously liable there for. A Constitution Bench of this Court in S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla, [A.I.R. 2005 SC 3512]. furthermore categorically stated that the complaint petition must contain the requisite averments to bring about a case within the purview of Sec. 141 of the Act so as to make some persons other than company, vicariously liable there for. In the present complaint mere clever drafting by an advocate stating that the Accused No.2 who is the GPA holder of the petitioner, would not in any way bring the case within purview of the essential ingredients of Sec. 138 of the N.I. Act. In the complaint, it is shown that both the accused are individuals and they are father and daughter. It is neither business concern nor the partnership firm nor an Association of persons. The concept of vicarious liability was introduced in penal statutes like Negotiable Instruments Act to make the Directors, partners or other persons, in charge of and control of the business of the Company or otherwise responsible for its affairs; the Company itself being a juristic person. In the case on hand, there is absolutely no such averment and the same cannot be brought into within the legal framework of the provision under Sec. 138 of the N.I.Act. 19. It is trite that if a cheque is issued by a person in discharge of the liability of another person and if the cheque is dishonoured, the person, who issued the cheque, can be prosecuted under Sec. 138 of the NI Act. The Accused No.2 who is the General Power of Attorney holder of the A1/the petitioner herein, issued the cheque for discharge of the liability. It is pertinent to mention here that on a plain reading of the complaint also goes to show that the amounts in the form of advance were paid by the complainant to the Accused No.2 only. Since the petitioner herein is not signatory to the cheque, the petitioner cannot be prosecuted under Sec. 138 of the N.I.Act. 20. When the basic ingredients of the offence are missing in the complaint, then permitting such a complaint to continue and to compel the petitioner to rigmarole of criminal trial would be totally unjustified leading to abuse of process of law. 21. 20. When the basic ingredients of the offence are missing in the complaint, then permitting such a complaint to continue and to compel the petitioner to rigmarole of criminal trial would be totally unjustified leading to abuse of process of law. 21. Therefore, the Criminal Petition is allowed and the proceedings against the petitioner (A1) in C.C.No.5836 of 2021 on the file of the Court of V Additional Junior Civil Judge, Guntur are hereby quashed. Miscellaneous petitions pending, if any, in the Criminal Petition shall stand closed.