VINOD K.SHARMA, J. - (1.) THIS petition under Section 482 of the Code of Criminal Procedure (for short the Code) has been moved for quashing of complaint and summoning order passed by the learned Addl. Chief Judicial Magistrate, Faridabad in the complaint filed under sections 138/142 read with Section 141 of the Negotiable Instruments Act (for short the Act).
(2.) THE petitioner has been summoned to face trial for an offence under section 138 of the Act being partner of M/s Satyam Urja Udyog i.e. accused No. 1 in the complaint. The allegations against the petitioner in the complaint read as under : "That the complainant is a partnership firm duly registered under the Partnership Act of which Sh. Naresh Goel is the partner and in this capacity, he is capable of instituting the present complaint and pursuing the same till its logical goal. 2. That Accused No. 1 is a partnership firm in which the accused Nos. 2, 3 and 4 are partners. The said firm primarily on the request and assurances of accused Nos. 2 and 3 obtained a loan from the complainant with the assurance that the amount would be repaid at the earliest. 3. That based upon the assurances and undertaking given primarily by Accused Nos. 2 and 3 on behalf of Accused No. 1, a loan was advanced to Accused No. 1. The books of Accounts of the complainant which are maintained in the normal course of business reflects the transactions and all other related transactions thereto. 4. That towards the partial repayment of the loan, the accused Nos. 2 and 3 issued Cheque No. 206613 dated 7.6.2007 for a sum of Rs. 50,00,000/- (rupees Fifty Lacs Only) from account No. 30030111644 of Accused No. 1 at State Bank of India, Daryaganj Branch, New Delhi with the assurance that upon presentation the effects of the cheque would be cleared and the amount shall be realized by the complainant. 5. That on presentation of the above mentioned cheques for realization through bankers of the complainant, HDFC Bank Ltd., Sector 16, Faridabad the same was returned back unpaid by the bankers of the Accused vide Cheque Return Advice dated 12.6.2007 detailing the reasons of the returned cheque as "Funds Insufficient". 6. That upon cheque being returned unpaid, the complainant got issued a statutory notice under section 138(b) of the Negotiable Instruments Act on 4.7.2007 addressed to the accused which was dispatched by registered post and by UPC. 7. That on receipt of the above notice under section 138(b) of Negotiable Instruments Act, the accused No. 3 sent a reply dated 15.7.2007 through their counsel Shri Rajesh Chugh, Advocate on totally false, frivolous and flimsy grounds but and not make any payment of the cheque amount to the complainant. Similarly, Accused No. 4 Hari Kishan Goel sent a reply through his counsel Sh. R.K. Gaur, advocate and he also stating various grounds did not make the payment. Thus the accused who are collectively bound to make the payment of the cheque amount to the complainant have failed to do so despite lapse of statutory period of the notice. 8. That since the loan was advanced to the Firm primarily on the asking of the accused Nos. 2 and 3 and utilized by the Firm, therefore, the accused are collectively liable and answerable to the present complaint. 9. That the bankers of the complainant are situated at Faridabad, where the debt has to be discharged. The firm of the accused is also at Faridabad where the accused also reside. The notice of demand was issued from Faridabad within the jurisdiction of this Hon'ble Court. Therefore, the complaint is maintained in present manner and form before this Hon'ble Court. 10. That the Cheque dated 7.6.2007 was returned back unpaid by the bankers of the accused vide Cheque return memo dated 12.6.2007 and intimation was received by the complainant vide cheque return advice dated 12.6.2007. Notice under section 138(b) of the Negotiable Instruments Act dated 4.7.2007 has been responded to by the accused vide communication dated 15.7.2007 and 17.7.2007. The statutory period of notice expired on 19.7.2007. The statutory period of notice expired on 19.7.2007, and therefore, the complaint is well within time." The complainant by way of preliminary evidence reiterated the facts stated in the complaint and also produced on record the cheque issued by the firm which was dishonoured for want of sufficient funds in the accounts of the accused. The complainant also produced on record notice and the reply submitted to the statutory notice issued.
(3.) MR . Sunil Chadha, learned counsel for the petitioner contends that the present complaint has been filed by Naresh Goyal as Satbir Singh Joon accused No. 2 i.e. the husband of the petitioner has fallen apart from Hari Kishan Goyal accused No. 4 the brother of the complainant Naresh Goyal. It is also the case of the petitioner that the petitioner has been implicated in the present case being the wife of Satbir Singh Joon accused No. 2. Learned counsel for the petitioner contends that it has been wrongly mentioned in the complaint that cheque was issued by accused Nos. 2 and 3, husband of the petitioner and petitioner. The contention of the learned counsel for the petitioner is that she is not incharge and responsible for the conduct of business of the firm nor there are any allegations in this regard.;