DEVENDRA PUNDIR Vs. RAJENDRA PRASAD MAURYA

JUDGEMENT

(1.) LEARNED counsel for the petitioner submits that the petitioner has come forward with this petition seeking for the relief of quashing the proceedings initiated against the petitioner along with other other accused for the offence under Section 138 of the Negotiable Instruments Act.

(2.) IT is contended by the learned counsel for the petitioner that the petitioner has been arrayed as second accused out of two accused. It is submitted by the learned counsel for the petitioner that the first accused is the sole proprietrix and she only issued the disputed cheques involved in this matter and in view of the position of the first accused being the sole proprietrix, the question of implication of the second accused in respect of the offence committed by the sole proprietrix concern not at all arise. Learned counsel for the petitioner further contended that section 141 of the Negotiable Instruments Act is not attracted. The said provision relates only in respect of a "company" or a "partnership firm" and not in respect of the "proprietary concern" and as such the petitioner being the second accused, he cannot be vicariously held responsible for the offence said to have been committed by the first sole proprietary concern. Learned counsel for the petitioner also placed reliance on the decision of the honourable Supreme Court reported in RAGHU LAKSHMINARAYANAN vs FINE TUBES (2007) 5 SCC 103 in support of his contention and contended that a "proprietary concern" is not covered under Section 141 Explanation and Section 138 of the negotiable Instruments Act and as such the vicarious liability of the persons other than the proprietor, does not arise.

(3.) PER contra, Mr. M. Ravi, learned counsel appearing for the respondent vehemently contended that there is specific allegation against the petitioner herein for the fact that he also actively participated in the proprietary concern. Therefore, it is contended by the learned counsel for the respondent that both the accused are jointly and severally liable to pay the amount towards the amount dishonoured in this matter. It is further submitted by the learned counsel for the respondent that as a matter of fact that the petitioner was doing the entire business in the Binami name, his wife, the first accused in this case. Therefore, it is contended by the learned counsel for the respondent that the petitioner is also liable to face the trial and if at all any point to be argued, the same can be raised at the time of full-fledged trial and hence the above quash petition is liable to be dismissed.