- (1.) Present application has been filed under section 482 of the Cr.P.C. by the applicants original accused Nos.1, 4 and 5 for an appropriate order quashing and setting aside Criminal Complaint No.58/2004 Inquiry Case No. 45/2005 subsequently numbered as Criminal Case No. 25780/2006 pending in the Court of learned JMFC, First Court, Surat.
(2.) A criminal complaint has been filed against the applicants original accused Nos.1, 4 and 5 and other accused in the Court of learned JMFC, First Court, Surat by the respondent No.2 original complainant for the offences under sections 138 and 141 of the Negotiable Instrument Act, 1881 (hereinafter referred to as Sthe N.I.Act for short) and under sections 406, 420, 114 and 120(B) of the I.P.C. It is alleged in the complaint that applicant No.1 herein original accused No.1 is a company who has issued cheque for an amount of Rs.11,50,000/- in favour of the respondent No.2 original complainant and the original accused Nos.2 to 6 are the directors of the said company and when said cheque was presented with the bank, the same is dishonoured and thereafter, statutory notice was served and after receipt of the said notice, the same has not been complied with and the amount in question has not been paid and therefore, the aforesaid complaint has been filed. That the trial Court has issued summons upon the accused for the offence under section 138 of the N.I.Act on 4.7.2006. Being aggrieved and dissatisfied with the same, the applicants original accused Nos.1, 4 and 5 have preferred present application under section 482 of the Cr.P.C. to quash and set aside the criminal complaint in question.
(3.) Shri Abhichandani, learned advocate appearing for the applicants has submitted that no offence has been committed by the applicants as alleged under section 138 of the N.I.Act and without express consent of the applicant No.1 company, the cheque was taken by the complainant from the Advocate and the same was deposited behind the back of the present applicant No.1 company inspite of the fact that the occasion / stage for the payment of the same has not been arisen. It is submitted that so far as applicant Nos.2 and 3 original accused Nos.4 and 5 are concerned, they are joined as accused as being directors of the applicant No.1 company, however, there are no specific averments in the complaint that they were in day to day management and affairs of the company and therefore, they cannot be held vicariously liable under section 141 of the N.I.Act and therefore, it is requested to allow the present application and to quash and set aside the impugned criminal complaint.;