RAMANLAL PITAMBER GANDHI Vs. GULAM MOHAMMED PIRBHAI SHAIKH

JUDGEMENT

(1.) PRESENT application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as CrPC) has been preferred by the applicant herein original accused Nos.1 to 3 to quash and set aside the complaint being Criminal Case No.3984/2002 pending in the Court of learned Judicial Magistrate First Class, Ankleshwar for the offence under Section 138 of the Negotiable Instrument Act, 1881 (hereinafter referred to as NI Act). [1.1] At the outset it is required to be noted that so far as applicant No.1 is concerned, applicant has already withdrawn the present application earlier and therefore, this Court is required to be consider the present application qua applicant Nos.2 and 3 original accused Nos.2 and 3 only.

(2.) RESPONDENT No.2 herein original complainant instituted the complaint being Criminal Case No.3984/2002 in the Court of learned JMFC, Ankleshwar against the applicants herein for the offence under Section 138 of the NI Act for dishonor of cheques in question which were issued by accused No.1 as power of attorney of the partnership firm M/s. Anand Industries and Chemicals. It is required to be noted that in the said complaint, the learned Magistrate has directed to issue process of summons against the applicants for the offence under Section 138 of the NI Act. Hence, applicant Nos.2 and 3 original accused Nos.2 and 3 have preferred the present application under Section 482 of the CrPC for quashing of the impugned complaint.

(3.) HEARD the learned advocates appearing for respective parties at length and considered the averments and allegations in the complaint so far as applicant Nos.2 and 3 original accused Nos.2 and 3 are concerned. The only allegation against the applicant Nos.2 and 3 herein original accused Nos.2 and 3 is that the original accused No.1 issued the cheques as power of attorney of accused Nos.2 to 3 and therefore, they are arraigned as accused. It is to be noted that the cheques in question have been issued by the original accused No.1 purported to be power of attorney holder of partnership firm M/s. Anand Industries and Chemicals. It is also required to be noted that neither the partnership firm is arraigned as accused nor even the applicant Nos.2 and 3 herein original accused Nos.2 and 3 are shown as partners of the said partnership firm. It is also required to be noted that the impugned complaint is filed against the accused persons in their individual capacities and not as partners of the partnership firm so far as applicant Nos.2 and 3 are concerned. It is also required to be noted at this stage that even as the accused persons are arraigned as accused in their individual capacities, even no statutory notice under Section 138 of the NI Act has been issued and served upon applicant Nos.2 and 3 herein. Under the circumstances, it cannot be said that applicant Nos.2 and 3 original accused Nos.2 and 3 have committed any offence as alleged under Section 138 of the NI Act. Under the circumstances, the impugned complaint deserves to be quashed and set aside so far as applicant Nos.2 and 3 original accused Nos.2 and 3 are concerned, as no case is made out against them for offence under Section 138 of the NI Act at this stage.