HARBANS LAL,J - (1.) THIS petition has been moved under Section 482 of the Code of Criminal Procedure Code (for short, 'the Code') by Avtar Singh for quashing the complaint, Annexure PI dated 28.1.2006 filed by the respondent bank against the petition for offence under Section 138 of the Negotiable Instruments Act (for brevity, 'the Act'), the summoning order dated 28.1.2006, Annexure P2 and the order dated 11.8.2007, Annexure P3 whereby the learned Judicial Magistrate, 1st Class has dismissed the application of the petitioner under Section 239 of the Code.
(2.) THE brief facts are that the petitioner is not the borrower from the respondent Bank. The borrower is M/s. Raja Arjun and Company (hereinafter to be referred as the 'firm') which has availed the credit facility to the tune of Rs. 50,00,000 in the name of the firm. The petitioner was the guarantor of this firm. He issued a cheque No.814906 dated 29.11.2005 for a sum of Rs. 1,50,000 drawn on the Indian Overseas Bank, Air Force Station E/C, Amritsar Cantonment in favour of the firm. The petitioner and the firm had inter se some financial transactions which has no relation with the Bank. Due to the financial transactions/dealings between the petitioner and the firm, he issued the above said cheque in favour of the firm. Unfortunately, the same was dishon- oured by the banker of the petitioner vide Memo dated 1.12.2005 with the re marks, 'exceeds arrangements.' The respondent Bank got hold of the above said cheque as well as the memo and filed the complaint. The learned Magistrate issued the summoning order on the basis of the above said baseless complaint. The petitioner neither owed the Bank anything nor he borrowed money from the Bank nor he issued the cheque m favour of the Bank. The petitioner filed an application under Section 239 of the Code for discharge. The same was dismissed. The above mentioned cheque was not for payment of any amount to the complainant Bank, which is not the payee. The payee or holder in due course of the cheque would be the firm. As such, the complaint lodged by the respondent against the present petitioner is not maintainable under Section 138 ibid. Consequently, the complaint as well as the further proceeding arising there from are liable to be quashed. I have heard the learned Counsel for the parties besides perusing the record with the care and circumspection. Mr. SS Majithia, Advocate, counsel for the petitioner canvassed at the bar that the cheque on the basis of which the bank has logged the complaint, was issued by the petitioner in favour of the firm and not in favour of the complainant bank and that being so, by no strength of speculation, the petitioner can be deemed to be a borrower of the bank. As such, in view of the provisions of section 138 ibid., the bank is not competent to institute the complaint against the petitioner.
(3.) TO tide over these submissions, Mr. K.S. Rekhi, Advocate for the respondent/Bank, contended that Avtar Singh accused, in order to discharge his liability towards the complainant Bank in part, has issued this cheque in favour of the borrower firm and handed were the same for crediting the cheque in the Cash Credit Facility account of the firm and, thus, prima facie, no case is made out for quashing the complaint as well as the subsequent proceedings. I have well considered the rival contentions.;