MOHAN MANDELIA Vs. STATE OF M P

JUDGEMENT

(1.) THIS common order shall govern the disposal of M.Cr.C. No. 2853/ 2008 (Mohan Mandelia Vs. State of M.P. and another) and M.Cr.C. No. 3234/2008 (Sant Kumar Sharma Vs. Rakesh Yadav and another) as they arise out of same order dated 4-2-2008 passed by the learned JMFC Gwalior; whereby, on a complaint filed by respondent No. 1 Rakesh Yadav, cognizance has been taken against the petitioners under Section 138 of Negotiable Instruments Act (for brevity "Act") and under Sections 417, 418, 420, 466, 468, 471, 120-B of IPC.

(2.) FACTS in compendium are that respondent Rakesh filed a complaint against the petitioners under Section 138 of Act and Sections 417, 418, 420, 465, 467, 468, 471, 120-B, IPC. As per averments of complaint, petitioner Mohan Mandelia and accused Beena Mandelia are doing business of making cartons and business is run in the name of GNTV. There was cordial relationship between complainant and petitioner Mohan. Complainant used to give loan to petitioner Mohan and his wife accused Beena from time to time and they used to return the said amount to complainant. It is further averred that from the year 2005 to July, 2007 on various occasions Rs. 5 lac two times, Rs. 10 lac and Rs. 9 lac, i.e., total Rs. 39 lac have been given as loan by the complainant to petitioner and his wife accused Nos. 1 and 2. That amount has not been returned by them. When the amount was demanded by the complainant, they tendered one cheque bearing No. 038504 of Bank of India, Phoolbagh Branch, Gwalior dated 8-10-2007 of Rs. 39 lac which was signed by accused No. 1 Beena by assuring that when cheque is presented it will be honoured. After its presentation for encashment, the said cheque stood dishonoured with the endorsement of "insufficient funds". Cheque was returned by Bank of India, Phoolbagh Branch in a sealed envelope. It is alleged that when complainant opened the envelope he found that in the Cheque it was mentioned that "Cheque issued for gift, valid up to Rs. 1,000/-". When cheque was given to complainant by petitioner and co-accused Beena at that time the hand written language and seal was not there. When information with regard to said cheque was sought from Branch Manager of Bank of India Phoolbagh Branch it was intimated that cheque was submitted by the Oriental Bank of Commerce for clearing which was returned by Bank of India because of insufficient fund and cheque was returned in original and Bank of India is having nothing to do with the seal and hand-written language on the cheque.

(3.) LEARNED Counsel drew this Court's attention to citation R. Kulyani Vs. Janak C. Mehta and others, (2009) 1 SCC 516, in which, it is held by the Apex Court that vicarious liability can be fastened only by reason of a provision of a statute and not otherwise and for said purpose, a legal fiction has to be created. Relying on the aforesaid citation, it is contended that no vicarious liability can be imposed on petitioner Sant Kumar as he was acting as Branch Manager of the Bank.