GAURAV GUPTA Vs. SUMITA JAIN

JUDGEMENT

(1.) This order shall dispose off above mentioned 11 petitions, i.e., CRM M-17311-2021, CRM M-39878 of 2021, CRM M-39975 of 2021, CRM M-50868 of 2021, CRM M-40044 of 2021, CRM M-40086 of 2021, CRM M-50866 of 2021, CRM M-6706-2022, CRM M-6725-2022 and CRM M-6696-2022 titled as 'Gaurav Gupta Vs. Sumita Jain', and CRM M-21122-2023 titled as 'Gaurav Gupta Vs. M/s Mahabir Parsad Lakmi Chand', whereby, the petitioners have prayed for quashing of the complaints filed under Sec. 138 of the Negotiable Instruments Act 1881 as well as summoning orders passed by the Court of Sub Divisional Judicial Magistrate, Ganaur, Sonepat and all subsequent proceedings arising therefrom. Since, the litigation in all the complaints is between the same parties and common questions of law and facts are involved in all the petitions; consequently, all the petitions are taken up together and are being disposed off simultaneously by way of common judgment. For the facility of reference, the facts have been culled out from the petition, i.e., CRM M-6696 of 2022 titled as 'Gaurav Gupta Vs. Sumita Jain'.

(2.) A complaint under Sec. 138 read with Sec. 142 of the Negotiable Instruments Act 1881 (hereinafter to be referred as 'the Act') and read with Sec. 420 IPC was filed by the respondent/complainant against the petitioner/accused, his father late Shri Surinder Kumar Gupta and their firm M/s SSG Foods, Gharaunda, District Karnal. The respondent/complainant alleged that she was a commission agent at Ganaur and was running her firm by the name of M/s Mahabir Parsad Lakmi Chand. The accused M/s SSG Foods is a Rice Mill and the petitioner/accused had placed an order for supply of paddy/rice from time to time. From 1/10/2018 to 31/3/2019, M/s SSG Foods, i.e., the accused/firm purchased a paddy of worth Rs.3,65,75,940.80, on which M/s SSG Foods made a payment of Rs.3,32,00,000.00 and the remaining amount of Rs.33,75,940.80 was carried forward to the next financial year. Again in the financial year 1/4/2019 to 31/3/2020, the accused paid Rs.6,81,24,000.00 out of total amount of Rs.11,02,32,431.80leaving the total outstanding amount of Rs.4,21,08,431.80. The accused also borrowed a sum of Rs.1,34.26 lacs from the complainant as the accused were in dire need of money as their business was about to shut down due to scarcity of money. In order to discharge their liability, accused issued cheques bearing No. 077936 dtd. 28/2/2020 of Rs.25.00 lacs and cheque bearing No. 082844 dtd. 30/3/2020 for a sum of Rs.25.00 lacs, both drawn on Oriental Bank of Commerce at Gharaunda, District Karnal, in the name of the complainant-company with the assurance that the same would be encashed on its representation. The complainant presented the cheques with her banker, but both the cheques were dishonoured and returned to the complainant with the remarks 'Funds Insufficient' and 'Payment stopped by the drawer', vide return memos dtd. 14/5/2020. Despite issuance of notice, the accused did not make payment equal to the amount of dishonoured cheques and the complainant filed complaint (Annexure P-4) before the Court of Sub Divisional Judicial Magistrate, Ganaur, Sonepat. Vide the impugned summoning order dtd. 20/10/2020, the petitioner and two other accused were ordered to be summoned under Sec. 138 of the Act. Challenging the validity of the summoning order dtd. 20/10/2020 (Annexure P-5), the petitioner has filed the present petition before this Court.

(3.) Learned counsel for the petitioner submitted that the petitioner has been illegally arrayed as an accused in the present case as a proprietor/partner of the firm M/s SSG Foods, Gharaunda. While referring to the registration certificate dtd. 7/9/2018 (Annexure P-1), learned counsel for the petitioner submitted that M/s SSG Foods, Gharaunda, is a sole proprietorship firm, having its sole proprietor Surinder Kumar Gupta and he had already been arrayed as an accused in the complaint. This clearly shows that the petitioner had no role to play and has been falsely involved. Still further, Surinder Kumar Gupta was the sole proprietor and he had already expired on 3/8/2020. Learned counsel further referred to both the cheques (Annexure P-2) and submitted that both the cheques were issued by the sole proprietorship firm, i.e., M/s SSG Foods, Gharaunda, and one cheque is having the signatures of Surinder Kumar Gupta as its proprietor, whereas another cheque is having the signatures of the present petitioner, as proprietor of M/s SSG Foods, Gharaunda. Consequently, even if it is presumed that the petitioner had signed a second cheque, then also no offence is made out against the petitioner. As per the settled law, in the cases of dishonour of a cheque issued by the proprietorship firm, the prosecution can be launched only against its proprietor and not against the signatory of the cheque. Still further, a person cannot be prosecuted only on the ground that he was drawer of the cheque. Moreover, in the case of dishonour of cheques issued by a proprietary concern, no employee of the proprietary concern can be prosecuted and the liability under Sec. 138 of the Act is only attracted against the proprietor of the cheque. Still further, even if, the drawer of the cheque had expired, no proceedings could be initiated against the legal heirs of the proprietor and only drawer of the cheque could be arrayed as a accused under Sec. 138 of the Act.