AARTI ENGINEERING COMPANY Vs. VIJAY DVIVEDI

JUDGEMENT

(1.) BEING aggrieved by the order date d 24/03/2003 passed in Criminal Case No. 1267/2003 by the Chief Judicial Magistrate, Durg, whereby taking cognizance against the petitioners along with another co-accused Vinod Mandhana under Section 138 of the Negotiable instruments Act 1881, (for short, "the Act") the petitioners have filed this petition under Section 482 of the Cr.P.C, for quashing the said order and all subsequent proceedings against the petitioners.

(2.) ONE partnership firm - Aarti Engineer Company, was constituted on 01/04/1994 comprising partners namely Kanhaiyalal Mandhana, Vinod Mandhana and Smt. Suman Mandhana for carrying the business under the name and style of Aarti Engineering Company. Subsequently, the firm was reconstituted on 01/04/1998 wherein one of the partners namely Vinod Mandhana took retirement and new partner joined in the said firm. Vinod Mandhana issued a cheque dated 01/10/2002 bearing No 357940 of Canara Bank, ltwari, Nagpur for Rs. 20,00,000/- to be paid to respondent No. 1 - Vijay Dvivedi. The siad cheque, on being submitted for encashment, was bounced and returned to respondent No. 1 with letter dated 15/10/2002 issued by the Canara Bank assigning reasons that no sufficient fund was in balance in the account and the payment was stopped by the drawer. Respondent No. 1 issued legal notice on 08/01/2003 to the petitioners and another co-accused Vinod Mandhana and thereafter as no amount has been paid to him, he filed a complaint against all the petitioners and co-accused Vinod Mandhanana.

(3.) NOW petitioners are challenging the order vide which case against them has been registered and the criminal proceeding is in progress on the grounds that they have not taken any loan from respondent No. 1 nor on their behalf any cheque has been issued and on the relevant date Mr. Vinod Mandhana was not the partner of the said firm. The legal notice issued by respondent after the period of limitation, violates the mandatory provisions of Section 138 of the said Act. Therefore, neither cognizance against the petitioners for committing any offence under Section 138 of the said Act, was permissible to be taken nor in violation of required legal provision proceeding against them could have been continued.