- (1.) M. K. Mittal, J. This application has been filed by Smt. Sunita Garg wife ofrakesh Garg Frenco Formulation through proprietor Smt. Sunita Garg and Rakesh Garg for quashing the Complaint Case No. 1239/9 of 2003, New No. 5228/05, Balaji Pharmaceuticals v. Sunita Garg and others, under Sec tion 138 Negotiable Instruments Act (hereinafter referred as Act) pending in the Court of Special Judicial Magistrate, Meerut.
(2.) HEARD Sri Vijaya Prakash learned Counsel for the applicants, Sri Kuldeep Kumar Mishra learned Counsel for the opposite party and learned AGAand pe rused the material on record. The parties have exchanged counter and rejoinder-affidavits. The brief facts of the case are that the opposite party No. 2 filed a com plaint against the applicants in the Court of Special C. J. M. Meerut, alleging that the applicants represented themselves to be the manufacturers in medicine field and proposed to appoint the complainant as Super Stockist of their products for Meerut region. The complainant believing the accused advanced Rs. five lakhs on 10th December, 2001, one lakh on 28th December, 2001 and one lakh in Septem ber 2001 in cash and cheques. The accused had assured to give medicines at an early date but inspite of several demands, the medicines were not supplied to the complainant. However Smt. Sunita Garg the applicant No. 1 gave 3 cheques dated 30th April, 2003 for Rs. five lakhs, one lakh and one lakh payable at UCO Bank, Meerut. The cheques were post dated and were given with the assurance that when they would be presented at 'the bank, they would be cashed. The complainant presented the cheques in the bank but they were dishonoured with the endorsement dated 3. 5. 2003 that the account had been closed. Thus, they were received back by the complainant on 6th May, 2003. Thereafter, she made several demands but in vain. Finally registered notice dated 19. 5. 2003 was sent by the complainant through her Counsel which was served on accused on 21st May, 2003. In spite of that no payment was made although, the complainant met the accused twice or thrice and demanded her money. Ultimately thevcomplain-ant presented this complaint on 30th June, 2003. The learned Magistrate examined complainant and finding that a prima facie case was made out against the accused directed to summon them by order dated 20. 11. 2003.
(3.) THE applicant No. 3 filed an application before the Court concerned alleg ing that no case was prima facie made out against him. THE perusal of the cheques revealed that they were issued by M/s Frenco Formulation bearing the stamp of proprietor. It shows that the cheques were issued by proprietorship firm and Rakesh Garg the applicant had no concern with the firm. It was also alleged that no allegation was made in the complaint that Rakesh Kumar Garg had anything to do with the day to day business of the firm or that he was incharge for that firm. In the circumstances, it was alleged that he could not have been summoned under Section 138, N. I. Act. However, the learned Magistrate rejected that application. Feeling aggrieved, the present application has been filed. The contention of the learned Counsel for the applicant is that the com plainant has not made any averments in the complaint that the applicant was responsible for the discharge of the day-to-day work of the firm. According to him the applicant No. 3 had no concern with the firm. The learned Counsel for the applicant has further contended that it is mandatory and if such averments have not been made the accused cannot be prosecuted under Section 138 of the Act.;