R.L. VERMA Vs. J.K. VERMA

JUDGEMENT

(1.) BY this petition under Section 482 of the Code of Criminal Procedure, 1973, the petitioners have prayed for setting aside the order dated 29.03.2007 passed by the learned Metropolitan Magistrate, in complaint case no. 669/2007 whereby the petitioners and respondents no. 2 and 3 were summoned for the offence under Section 138 of The Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act') and also for quashing the said complaint.

(2.) THE Respondent no. 1-complainant filed a complaint case against M/s. Vasu Tech Ltd., respondent no. 2 herein and its Directors, who are the petitioners no. 1 & 2 as well as respondent no. 3 herein, under Section 138 of the Act. It is alleged by the complainant-respondent no.l in the complaint that he entered into an agreement to sell with petitioner no. 3 herein (which is an HUF firm of which petitioner no. 1 is the karta and which was arrayed as accused no. 5 in the complaint), in respect of one flat. However at the time of execution of the flat buyer agreement, that flat was on rent with some tenant. Accused no. 2-4 arrayed in the complaint, are all family members and accused no. 1 (M/s Vasu Tech Ltd.) and 5 were their family concerns. Accused no. 2 to 4 had requested the complainant that their family concern was in dire need of money for some technological development and urged the complainant not to claim rent amounting to Rs. 2,50,000/- per month for the said flat for the time being from the tenant and that request the complainant accepted. To secure the debt on account of rent due from the tenant, the accused Company, respondent no.2 herein, issued a post dated cheque for Rs. 35,00,000/-. However on presentation to the bank of the Company, the said cheque was dishonoured for the reason "insufficient funds". After serving statutory demand notice on the petitioners as well as respondents no. 2 & 3, the respondent no. 1 filed a criminal complaint in Court in respect of the said dishonoured cheque. The learned Metropolitan Magistrate took cognizance for the offence under Section 138 of the Act and vide his order dated 29.03.2007 summoned the petitioners herein as well as respondents no. 2 and 3 as accused. Feeling aggrieved, the petitioners have filed this petition.

(3.) PER contra, the learned counsel for the respondent no. 1-complain-ant contended that there was no deficiency in the averments in the complaint regarding the liability of the petitioners no. 1 and 2 inasmuch as in para no. 16 of the complaint it had been categorically pleaded by the complainant that these petitioners were in-charge and responsible for the affairs and business of the accused Company (respondent no.2 herein) and that is what was required to be pleaded. In support he has placed reliance on the judgment of the Hon'ble Supreme Court in "N. Rangachari v. Bharat Sanchar Nigam Ltd" 2007 (2) JCC (NI) 205 : AIR 2007 SC 1682. Regarding the petitioner no.3 it was submitted that since the complainant had agreed not to claim, rent from the tenant in the flat purchased by him from petitioner no. 3 on the joint request of all the petitioners and respondent no. 2 and 3, and the accused Company (respondent no. 2) and HUF (petitioner no. 3) being family concerns the petitioner no. 3 is also liable to be prosecuted.