Vishnu Chandra Gupta, J. - (1.) BY means of this petition under Section 482 Cr.P.C. petitioner Shanish Kumar Misra has challenged the order dated 15.07.2005 passed by Additional Chief Judicial Magistrate, Court No. 5, Lucknow in Complaint Case No. 634 of 2005 summoning the petitioner under Section 138 Negotiable Instrument Act (herein after referred to as the 'N.I. Act') and has also prayed for quashing the Complaint Case No. 634 of 2005, under Section 138 N.I. Act, P.S. Chinahat, District -Lucknow filed by Opposite Party No. 2 - Bhanu Yadav.
(2.) THE brief facts for deciding this petition are that the opposite party no. 2 the complainant, filed a complaint under Section 138 of N.I. Act against the petitioner on the allegation inter -alia that the complainant is owner of business of his proprietorship firm titled as M/s. Arch -En -Engg. Consultants and working as contractor for construction of the buildings. The petitioner and Opposite Party No. 2 have entered into an agreement for construction of building of Opposite Party No. 2 on contract basis by executing an agreement dated 17.05.2004. In discharge of his liability of payment due against the petitioner, the petitioner issued a cheque of Rs. 50,000/ - dated 05.01.2005 having No. 269002 of I.D.B.I. Bank Ltd. the Opposite Party No. 3. This cheque was dishonoured when presented in the Bank on account of insufficient founds. The complainant after serving notice of demand filed present complaint under Section 138 N.I. Act. The learned Magistrate after considering the material on record has passed a reasoned order summoning the petitioner to face trial under Section 138 N.I. Act. Aggrieved by this order and consequent proceedings initiated in form of complaint case No. 634 of 2005 filed this petition. Heard Shri Mukul Rakesh, learned counsel for the petitioner and learned AGA and perused the record of the case. Non appeared on behalf of the opposite parties No. 2 and 3 in spite of sufficient service.
(3.) THE order has been assailed firstly on the ground that the cheque was issued in the name of Firm and Firm has not filed the complaint, who is the holder in due course of the cheque in question, therefore, the complaint is not maintainable. Learned Counsel for the petitioner in support of his contention has relied upon the judgment of Apex Court in case of Milind Shripad Chandurkar Vs. Kalim M. Khan & Anr., : 2011 (3) JIC 60 (SC) : (2011) 4 SCC 275. In para 26 at page 280 in SCC the Apex Court held as under: "26. In the instant case, it is evident that the firm, namely, Vijaya Automobiles, has been the payee and that the appellant cannot claim to be the payee of the cheque, nor can he be the holder in due course, unless he establishes that the cheques had been issued to him or in his favour or that he is the sole proprietor of the concern and being so, he could also be the payee himself and thus, entitled to make the complaint. The appellant miserably failed to prove any nexus or connection by adducing any evidence, whatsoever, worth the name with the said firm, namely, Vijaya Automobiles. Mere statement in the affidavit in this regard, is not sufficient to meet the requirement of law. The appellant failed to produce any documentary evidence to connect himself with the said firm.";