Rekha Mittal, J. - (1.) THE present petition under Section 482 of the Code of Criminal Procedure has been preferred for quashing Complaint No. 114 dated 27.1.2009 for offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (in short "the Act"), pending in the Court of Judicial Magistrate, Gurgaon (Annexure P -4), summoning order dated 27.1.2009 (Annexure P -5) and proceedings emanating therefrom.
(2.) THE facts, in brief, are that the respondent initiated criminal proceedings on the allegations that Cheque bearing No. 078393 dated 21.6.2008 of Rs. 1,25,000/ - and another cheque bearing No. 078394 dated 21.7.2008 of Rs. 1,26,000/ - drawn on account No. 3646, Canara Bank, Old Railway Road, Gurgaon Haryana were issued for payment of share of the complainant in the firm M/s. S.S. Enterprises consisting of three partners namely Ms. Vibha Shrivastava, Ms. Suman Chaurasia and Mr. Niwas Kumar Pandey. The complainant presented the cheques for encashment but the same got dishonoured with the remarks "insufficient funds". The accused failed to make payment of the cheque amounts despite receipt of legal notice. The petitioner was summoned to face trial vide order dated 27.1.2009. On may 21, 2014, the following order was passed by this Court: - During the course of hearing, it transpired that the cheques in dispute, subject matter of the proceedings under Section 138 of the Negotiable Instruments Act, 1881 (for short "the Act") have also been signed by the complainant herself in her capacity as one of the partners of the firm. The question to be answered in the present proceedings is: - whether the signatory of the cheques in dispute is competent to initiate proceedings under Section 138 of the Act due to dishonour of the cheques with the remarks 'insufficient fund' - Counsel for the parties pray for time to address the court on the issue. Adjourned to 30.6.2014.
(3.) COUNSEL for the petitioner strenuously argued that as the cheques in question were also signed by the complainant in her capacity as one of the partners of the partnership firm namely M/s. S.S. Enterprises, the proceedings under Section 138 of the Act are not maintainable. It is further argued that the complainant being one of the signatory of the cheques cannot be arrayed both as a complainant as well as accused. It is further submitted that even if the complainant (respondent) has an outstanding liability qua her share in the partnership business, she can only take recourse to appropriate proceedings in law for recovering the said amount.;