UMESH KUMAR MODI Vs. TALERA TRADERS

JUDGEMENT

(1.) THIS is a petition filed under Section 482 of Criminal Procedure Code by petitioner wherein the impugned order dated 29.6.2002 of taking cognizance of the offence under Section 138 of Negotiable Instruments Act (hereinafter shall be referred as 'Act' for brevity) passed by Judicial Magistrate, First Class, Ujjain against the present petitioner in criminal (private complaint) case No. 102 of 05 is under challenge and seeking quashment of the same.

(2.) SHORT facts of the case are that complainant respondent No. 1 filed a complaint against as many as 17 persons under Section 138 of the Act. The learned Trial Magistrate vide order 29.6.2002 took cognizance of the offence under Section 138 of the Act against all the persons arrayed as accused in the complaint. It has been stated in the complaint that all the accused persons including the present petitioner are the company and its Managing Directors and authorized signatory and Manager, Purchase of Modi Industries Ltd. as well as Modi Vanaspati Manufacturing Co. Ltd. It has also been stated, that some amount was taken as loan by Modi Industries Ltd and Modi Vanaspati Ltd. from the complainant and two cheques bearing No. 17170 of Rs. 2,83,000/ - and No. 171091 of Rs. 9,740/ - were issued in favour of the complainant and given to him which were dishonoured by the Bank with a memo that sufficient funds is not available in the account of company. Thereafter notices were sent by the complainant through his Counsel to all the accused persons and the complaint was filed.

(3.) IT has also been submitted by learned Counsel appearing for the petitioner that the present petitioner is not connected in any manner whatsoever with the management aad control of day -to -day affairs of Vanaspati unit of M/s. Modi Industries Ltd. The Vanaspati unit which was being looked after by Mr. M.K. Modi who had issued cheques in question to the complainant and such cheques have been signed by authorized signatory of Vanaspati unit of NA2 which were dishonoured by the Bank on account of insufficiency of funds. It has been submitted that in the complaint it has nowhere been averred that present petitioner is in -charge of and is in control of day -to -day affairs and management of NA2. It has also been contended that as per settled law the complaint must contain a mention of the aforesaid factum for an offence to be made out under Section 138 read with Section 148 of the Act and since there is no such averments in the complaint, so, no offence is made out against the petitioner. Therefore, it has been prayed that the impugned order of taking cognizance against the petitioner is liable to be quashed.