SURENDRA KUMAR JAIN Vs. PRADEEP KUMAR AGRAWAL

JUDGEMENT

(1.) By this petition under Section 482 of the Cr. P.C., the petitioner has prayed for quashment of criminal proceeding in Criminal Complaint Case No. 290/2008 pending before the Court of Additional Chief Judicial Magistrate, Surajpur for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the Act'). I have heard learned counsel for the parties, perused the order taking cognizance, dated 29-5-2008 passed by the Additional Chief Judicial Magistrate, Surajpur in Criminal Complaint Case No. 290/2008 whereby cognizance of the offence punishable under Section 138 of the Act has been taken against the petitioner and process has been issued.

(2.) Learned counsel for the petitioner vehemently argued that as per allegation made in the complaint, in the year 1996, the respondent had given loan of Rs. 2,50,000/- to Bhilai Cement Company Private Limited and the petitioner was the Director of the said Company. The said Company is required to pay interest and they deposited the interest till 31-3-1999 and thereafter, the said Company defaulted in paying interest. Total due including interest claimed by the respondent is Rs. 9,67,906.26 ps. The petitioner issued a postdated cheque for Rs. 2,70,250/-. The respondent has presented the cheque for payment before the Bank and same was dishonoured on account of direction of the petitioner for 'stop payment'. Thereafter, notice has been issued and complaint was filed. Learned counsel further argued that in his detailed complaint, the respondent has nowhere mentioned the fact that whether the petitioner as Director of the Company was responsible to the Company for the conduct of business of the Company and what was the responsibility and duty of the petitioner. Learned counsel also argued that cheque of Rs. 2,70,250/- was presented for encashment and same was dishonoured, but by issuing notice, the respondent/complainant has claimed Rs. 9,67,906.26 ps. and not the amount of cheque. Learned counsel submitted that the respondent has not made the Company as accused in terms of Section 141 of the Act. In absence of specific allegation relating to responsibility of the petitioner, non-impleading the Company as accused and not claiming the amount of cheque by serving notice, the petitioner is not liable to pay any dues and criminal proceeding pending before the Court is only abuse of process of the Court.

(3.) Learned counsel for the petitioner placed reliance in the matter of K.R. Indira v. Dr. G. Adinarayana, 2003 8 SCC 300 in which the Supreme Court has held that complainant is required to demand the amount of cheque and specific demand is required to be made by issuing notice, in absence of such specific demand of the amount of cheque, notice held to be invalid. Learned counsel further placed reliance in the matter of National Small Industries Corporation Limited v. Harmeet Singh Paintal and another, 2010 3 SCC 330 in which the Supreme Court has held that liability of the Director in terms of Section 141 of the Act is vicarious liability of the Director or Joint/Managing Director, therefore, the complainant is required to make averment relating to responsibility of the Director and role of the concerned person, in absence of such allegation, the complaint is liable to be quashed.