- (1.) A. K. Roopanwal, J. This application under Section 482, Cr. P. C. has been moved for quashing the entire criminal proceedings of complaint case No. 4698/06, under Section 138 read with Sections 141 and 142, N. I. Act, pend ing in the Court of the 1st Additional Chief Judicial Magistrate, Ghaziabad.
(2.) IT appears from the facts of the case that a complaint was filed by the complainant Mrs. Shashi Jain against (1) M/s. Elfotec Electro Chemicals Ltd. ; (2) Mr. Kanak Surana; (3) Mr. Omprakash Sairaf and (4) Mr. Bhagirath Arya (appli cant ). IT was the case of the complainant in the complaint that she is the director of M/s. Jain Bro Gas Refilling Pvt. Ltd. having its head office at Ghaziabad. Ac cused No. 1, M/s. Elfotec Electro Chemicals Ltd. has its head office at Pondichhery, accused No. 2, Mr. Kanak Surana and accused No. 3, Mr. Omprakash Sairaf are the directors while accused No. 4, Mr. Bhagirath Arya (applicant) is the promotor and controller of this company. They all are managing day to day affairs of the company and are responsible for each and every work of the company. The com plainant company gave a loan of Ross. 53,39,437. 36p. to accused No. I in the year 2005 on different dates either by cheque or by draft. In order to repay this loan accused Nos. 1 to 4 issued a cheque No. 038979 of DTI Bank, Pondichhery for Rs. 53,39,437. 36p. to the complainant company. When the complainant pre sented this cheque at Bank of India, Ghaziabad, it was dishonoured. The informa tion in this regard was given to the complainant by her banker Bank of India on 2. 2. 06. The complainant, then, sent a notice through registered post to all the accused persons on 18. 2. 06 and demanded the amount of the cheque. The ac cused persons did not comply with the notice, hence, the complainant filed the complaint in the Court of the Additional Chief Judicial Magistrate, Ghaziabad which was registered as complaint No. 5270/06. On this complaint the statement of the complainant was recorded under Section 200, Cr. P. C. The complainant also filed the original cheque memo of the bank and copy of the notice. The Additional Chief Judicial Magistrate, Court No. 1, Ghaziabad after perusal of the statement and the documents summoned the accused persons under Sections 138 and 141, N. I. Act vide his order dated 19. 9. 06. Feeling ag grieved by this order the applicant has filed the present petition. I have heard Mr. P. P. Srivastava, learned senior Counsel assisted by Tulika Prakash and Shishir Prakash, learned Counsel for the applicant, learned AGA for the State, Mr. V. P. Srivastava, learned senior Counsel assisted by Mr. Nitin Gupta for the complainant and perused the record.
(3.) LEARNED Counsel for the applicant argued that in the present case require ments of Section 141, N. I. Act were not satisfied and, therefore, the ACJM con cerned was not justified in summoning the applicant. The whole proceedings based on the summoning order are bad and are liable to be quashed. In support of the argument reliance has been placed on (2005) 8 SCC 89, S. M. S. Pharma ceuticals Ltd. v. Neeta Bhalla and another and (2007) 3 SCC 693, Saroj Kumar Poddar v. State (NOT of Delhi) and another. In S. M. S. Pharmaceuticals Ltd. v. Neeta Bhalla and another, (2005) 8 SCC 89, it was held by the apex Court that in a complaint case where the cheque issued by or on behalf of the company was dishonoured it is necessary for the complainant to aver that at the time when the cheque was issued the present accused was incharge of, and responsible for the conduct of business of the company. Without this averment being made in the complaint, the requirement of Section 141, N. I. Act cannot be said to be satisfied.;