L.K CHAUHAN Vs. MUNIJA AKEEL

JUDGEMENT

(1.) This petition has been filed by the applicant invoking the extraordinary jurisdiction of this Court under Sec. 482 of Cr.P.C. challengin the order dtd. 13/12/2022 passed by Seventeenth Additional Sessions Judge, Bhopal in Criminal Revision No. 472 of 2022.

(2.) Briefly stated facts of the case are that the respondent had filed a complaint case under Sec. 142 of the Negotiable Instruments Act, 19\881 against the applicant alleging an offence under Sec. 138 of the Negotiable Instruments Act. It was stated in the complaint by the respondent that she is the proprietor of M/s Fluid Tech and and applicant is the proprietor of Jayshree Rail Construction. An agreement for sale dtd. 9/7/2018 was entered into between them to the effect that the respondent shall purchase the property of the applicant for a consideration of Rs.65,00,000.00. It was further stated by the respondent that in lieu of the agreement for sale, the respondent had transferred an amount of Rs.46,00,000.00 between 18/7/2018 to 31/10/2018. Subsequently, agreement for sale dtd. 9/7/2018 was cancelled by the parties by mutual agreement and the applicant had issued a cheque of Rs.45,00,000.00 bearing No. 130511 dtd. 20/4/2019 drawn on Union Bank of India, Arera Colony, Bhopal in favour of the respondent. When the respondent present the aforesaid cheque in the Bank, the same got dishonoured by the Bank stating that the instrument "exceeds arrangement" hence the applicant sent a legal notice to the applicant. Despite that, the applicant did not pay the aforesaid amount to the respondent, therefore, respondent filed a complaint case. In the said complaint case, learned JMFC vide order dtd. 5/9/2022 had taken cognizance and framed charge against the applicant under Sec. 138 of the Negotiable Instruments Act. Being aggrieved thereby the applicant filed a criminal revision before Seventeenth Additional Sessions Judge, which has been dismissed vide order dtd. 13/12/2022, hence this petition has been filed by the applicant for quashing of aforesaid charge.

(3.) Learned counsel for the applicant submits that learned Judicial Magistrate First Class erred in law while taking cognizance vide its order dtd. 5/9/2022. Learned JMFC has failed to consider the fact that the proprietorship firm, which had issued the cheque in question, has not been impleaded as the respondent/accused. It is further submitted that Jay Shree Rail Constructions which had issued the cheque, is a proprietorship concern and has an independent existence and therefore, in absence of impleadment of the firm, the cognizance taken by learned JMFC is contrary to law, therefore, the impugned orders may be set aside and the applicant may be discharged from the aforesaid charge.