SUNEET KUMAR, J. - (1.) Heard learned counsel for the applicant and learned A.G.A. This application filed under Section 482 Cr.P.C. seeks quashing of the Criminal Complaint Case No. 5 of 2014 (Prem Kumar and others v. Shivani Tyagi), under Section 138 of Negotiable Instruments Act, 1881 (for short 'N.I. Act'), pending in the court of learned Metropolitan Magistrate-9, Kanpur Nagar.
(2.) The factual matrix of the case is that the opposite parties no. 2 to 5 filed a complaint against the applicant alleging that the accused persons are partners of a firm M/s Fashion Plus engaged in the business of ready made garments in brand name 'CAT 'N' LILL" & 'SONA'. As per the terms of the investor agreement the opposite party had to deposit Rs. 11,65000/- with the firm towards security for the material which would be provided by the franchise firm/company. The deposit was refundable. It is alleged that each of the opposite party paid their share towards security in cash. Subsequently, the accused persons closed their franchise and returned the security sum by issuing cheques to each of the opposite party for the same amount on 08 January 2013. On presentation, all the cheques were dis-honored by the bank with an endorsement "fund not sufficient". A notice dated 15 January 2013 was issued to the accused persons by registered post. Upon non payment, complaint was filed on 11 February 2013.
(3.) Learned Magistrate took cognizance on the same date and summoned the accused on 30 March 2013. Learned counsel appearing for the applicant would submit (i) that the complaint as such is not maintainable as the cause of action i.e. the date of service of notice is not indicated in the complaint; (ii) there is no outstanding due or liability against the applicant; (iii) the notice is alleged to have been sent on 15 January 2013 and the complaint was filed on 11 February 2013 within 45 days thus being premature; (iv) the cheques were issued by the applicant who neither is the partner or proprietor of the firm, (v) cheques were issued refunding security and not for repayment of legally recoverable debt/liability. ;