ANIL KUMAR Vs. STATE OF DELHI

JUDGEMENT

(1.) M/s.Prem Nath Autos Pvt.Ltd., (hereinafter referred to as `the complainant") respondent no.2 herein has filed complaint under Section 138 of the Negotiable Instrument Act against two persons, namely, M/s.Om Sons Autos as Accused No.1 and Shri Anil Kumar, Proprietor of M/s. Om Sons Autos impleading him as Accused No.2. It is, inter alia, stated that complainant had supplied material to accused persons from time to time and discharged of their liabilities. Accused persons had issued different cheques on different dates for total sum of Rs.17,76,470/-. These cheques which were 37 in numbers and particulars whereof are given in para-5 of the complaint were dishonoured on presentation. Legal notice dated 17.5.1997 was issued calling upon accused persons to make payment of the amount within 15 days from the date of the receipt of the said notice which was neither replied nor payment was made and, therefore, complaint was filed by the complainant. Vishnu Sharma, authorized representative of the complainant tendered his evidence by way of defence and was examined who exhibited various documents in his examination on the basis of which summoning orders were passed against the accused persons. Shri Anil Kumar, accused no.2 has filed this petition challenging the summoning orders. It may be noted that he had moved an application dated 2.11.2001 for recalling the summoning orders and his discharge, inter alia, alleging that:

(2.) This application was dismissed by the learned Trial Court vide order dated 11.8.2003. In this petition, the petitioner prays for setting aside the aforesaid orders and quashing of summoning orders passed against him. It may be stated at the outset that the Trial Court observed that the petitioner was in fact a partner and not a Proprietor of M/s.Om Sons Autos and he was inadvertently described as Proprietor of the said firm. Learned Magistrate, however, has stated that it would not be a ground to reject the complaint. It further noted that all the cheques issued in favour of the complainant would show that accused is a partnership firm and the cheques are signed by a partner of the firm. Even notice dated 17.5.1997 was given by the complainant through counsel, to accused as a partner of the firm . This aspect of the matter is not challenged by the petitioner in the present petition. Therefore, one has to proceed on the basis that the petitioner is arrayed as an accused in the capacity of a partner of M/s. Om Sons Autos.

(3.) Cheques in question are admittedly issued by the said firm and are signed by another partner of the firm. In this backdrop the contention which is pressed is that the petitioner is not the person responsible for the affairs of the firm and, therefore, he could not be made an accused person. Submission of learned counsel for the petitioner is that there is no averment against the petitioner to the effect that he was responsible for the affairs of the accused no.1 firm. It was submitted that there was not even averment to the effect in the complaint and referring upon the judgment of SMS Pharmaceuticals Vs. Neeta Bhalla (2005) 8 SCC 89, learned counsel contended that such a complaint qua petitioner was liable to be rejected and summoning order quashed. This contention of the petitioner placed before the Trial Court has been dealt with in the following manner in the impugned order dated 11.8.2003: