- (1.)PRESENT petition under section 482 of the Code of Criminal Procedure has been preferred by the petitioners herein -original accused to quash and set aside the impugned complaint being Criminal Case No.4084 of 2007 filed by the respondent No.2 herein -original complainant for the offence punishable under section 138 r/w section 141 of the Negotiable Instruments Act, at the relevant time pending in the court of learned Metropolitan Magistrate, Court No.13, Ahmedabad.
(2.)THE respondent No.2 herein original complainant has instituted the impugned complaint being Criminal Case No.14084 of 2007 against the petitioners herein original accused in the court of learned Metropolitan Magistrate, Ahmedabad for the offence punishable under section 138 read with section 141 of the Negotiable Instruments Act for dishonour of the cheque in question, issued by the petitioner Nos.6 and 8 herein original accused nos.6 and 8. That in the said complaint the learned Magistrate has directed to issue Summons against all the accused persons for the offence punishable under section 138 of the Negotiable Instruments Act. Hence, the petitioners -original accused have preferred the present petition under section 482 of the Code of Criminal Procedure.
(3.)MR .G.M. Joshi, learned advocate appearing on behalf of the petitioners has stated at the bar that so far as the petitioner No.2 is concerned, he has already expired way back in the year 2008 and therefore, he is already deleted.
3.01. Mr.Joshi, learned advocate appearing on behalf of the petitioners does not press the present petition and seeks permission to withdraw the present petition QUA petitioner No.6 -original accused No.6 named Shri Rajeev Kumar Singh and petitioner No.8 -original accused No.8 named Shri Daljit Singh, who have issued cheques in question and who are signatory to the cheque in question

Permission as prayed for is granted. Present petition is dismissed as withdrawn QUA petitioner Nos.6 and 8 original accused Nos.6 and 8. Rule is discharged accordingly.

3.02. Under the circumstances, now the present petition is required to required to be decided so far as the rest of the petitioners are concerned i.e. petitioner Nos.1, 3 to 5, 7, 9 and 10.

3.03. Mr.Joshi, learned advocate appearing on behalf of the petitioner Nos.1, 3 to 5, 7, 9 and 10 has vehemently submitted that as such the said remaining petitioners have not committed offence under section 138 of the Negotiable Instruments Act, as alleged. It is submitted that the cheque in question which has been dishonoured and for which the impugned complaint has been filed, is neither issued by the rest of the petitioners nor the same is drawn from the Bank Account maintained by them or the original accused No.1 Company, of which the rest of the petitioners are Directors. It is submitted that admittedly the cheque in question which is dishonoured has been issued by the original accused Nos.6 and 8 and signed by them and drawn from the Bank Account maintained by them. Therefore, for the dishonour of the cheque which has been issued by the original accused Nos.6 and 8 and signed by them, and issued from the Bank Account maintained by accused Nos.6 and 8, and when such cheque is dishonoured, it cannot be said that the rest of the petitioners have committed any offence under section 138 of the Negotiable Instruments Act. It is submitted by Mr.Joshi, learned advocate appearing on behalf of the petitioners that ingredients of offence under section 138 of Negotiable Instruments Act are not satisfied so far as the reset of the petitioners are concerned and therefore, to continue the criminal proceedings against them would be abuse of process of law and court and therefore, it is requested to allow the present petition and quash and set aside the impugned complaint QUA them i.e. petitioner Nos.1, 3 to 5, 7, 9 and 10.

3.04. Mr.Joshi, learned advocate appearing on behalf of the petitioners has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Jugesh Sehgal Versus Shamsher Singh Gogi, 2009 14 SCC 683as well as decision of the Hon'ble Supreme Court in the case of P.J. Agro Tech Limited and Others Versus Water Base Limited, 2010 12 SCC 146as well as decision of this Court in the case of Mahendrakumar Tulsibhai Patel Vs. State of Gujarat and another, 2008 1 GLH 196.

By making above submissions and relying upon above decisions, it is requested to allow the present petition and quash and set aside the impugned complaint/Criminal Case.

Present petition is opposed by Mr.Gupta, learned advocate appearing on behalf of the respondent No.2 ordinal complainant. He has submitted that as such the disputed cheque in question which has been dishonoured and for which the impugned complaint has been filed, has been issued / given by the original accused Nos.6 and 8 for and on behalf of the original accused No.1 Company and with respect to dues of the original accused No.1 Company and with respect to the account of the original complainant maintained by the original accused No.1 Company. Therefore, it can be said that the cheque in question which has been dishonoured is also issued by the original accused No.1 Company and the rest of the petitioners herein being Directors of original accused No.1 Company are responsible for the offence alleged to have been committed by the original accused No.1 Company. 4.01. Mr.Gupta, learned advocate appearing on behalf of the original complainant has further submitted that even there was no reply to the statutory notice by the original accused No.1 Company disputing that the Account for which the cheque in question was issued, was not maintained by the Company.

4.02. Mr.Gupta, learned advocate appearing on behalf of the original complainant has further submitted that section 138 of the Negotiable Instruments Act does not say that the Bank Account must be maintained by the accused in his/her/its own name. It is submitted that if the cheque which is issued by any person is for the dues/account of the concerned person, then the liability under section 138 of the Negotiable Instruments Act would be attracted. It is further submitted that what is stated in section 138 of the Negotiable Instruments Act is that when any cheque drawn by a person on an account maintained by him...... is returned by the Bank unpaid and on non -compliance of section 138 of the Negotiable Instruments Act, it can be said that the offence under section 138 of Negotiable Instruments Act is committed by such person who was maintaining the account for which the cheque has been issued.

4.03. Mr.Gupta, learned advocate appearing on behalf of the original complainant has also relied upon Balancesheet of the original accused No.1 Company to submit that the Account for which the cheques were issued by the original accused nos.6 and 8 was maintained by the original accused no.1 Company and the said amount was debited in the Account maintained by the accused no.1 Company. It is submitted that for their internal convenience original accused Nos.6 and 8 might have issued cheque but if the said amount is for the Account maintained by the original accused No.1 for and/or for the dues of the original accused No.1 Company for dishonour of the said cheque, original accused No.1 and its Directors can be held liable for the offence under section 138 of the Negotiable Instruments Act.

By making above submissions it is requested to dismiss the present petition.