- (1.) The matter under Section 227 of Constitution has been filed by petitioner to set aside the impugned orders dated 31.10.2018 passed by Additional Court No. 3, Agra in Complaint No. 1500 of 2011 (Nepal Singh Vs. Dhirendra Singh) under Section 138 of Negotiable Instruments Act, 1881 and the order dated 6.2.2020 passed by Additional Sessions Judge, Court No. 17, Agra in Criminal Revision No. 552 of 2018 (Dhirendra Vs. State of U.P. and Another) and to quash the summoning order dated 28.3.2012 as well as entire proceeding of Complaint Case No. 1500 of 2011 pending in the court of Additional Court No. 3, Agra.
(2.) Brief facts of this case are as follows-: That respondent no. 2 stated that present petitioner borrowed Rs. 1,00,000/- from him and on 8.2.2011, the petitioner handed over two cheques bearing no. 850213 and 850214 dated 9.4.2011 and 15.4.2011, respectively. Cheques were presented before the Bank but the same were dishonoured due to insufficient amount in the account. ON 18.10.2011, respondent no. 2 sent a notice to the petitioner and same was served but all in vain. On 8.11.2011, respondent no. 2 filed a complaint case no. 1500 of 2011 (Nepal Singh Vs. Dhirendra Singh) under section 138 of Negotiable Instruments Act, 1881 against the petitioner in the court. Trial court vide its order dated 28.3.2012 has taken cognizance and summoned the petitioner.
(3.) Learned counsel for the petitioner submitted that complainant / respondent is wholly incompetent to lodge the prosecution as cheques were issued by the firm M/s Rashmi Arosole and Chemicals and petitioner is proprietor of this firm but the firm is not arraign as an accused. Reliance has been placed on section 138 of Negotiable Instruments Act, 1881 (Hereinafter referred as N.I. Act) i.e. read as under:- Section 138 in The Negotiable Instruments Act, 1881 "18 [ 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 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, 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." ;