SUNIL CHOUDHARY Vs. ALISHA ENTERPRISES

JUDGEMENT

(1.) THIS petition under section 561 -A Code of Criminal Procedure has been filed seeking issuance of orders by this court for quashing the complaint and for quashing the proceedings and order dated 17th March 2009 filed by respondent against the petitioners Under Section 138 Negotiable Instruments Act, 1881 (hereinafter referred to as the Act of 1881).

(2.) THE facts are briefly summarized as under; Respondent has filed a complaint against the petitioners u/s 138 of the Act of 1881 which complaint is pending on the files of Ld. Judicial Magistrate First Class (4th Addl. Munsiff) Jammu. The complaint is filed on behalf of 'M/s Alisha Enterprises which is a proprietorship concern of Smt. Rashmi Gupta and Smt. Rashmi Gupta has filed this complaint through her attorney holder Sh. Karnail Chand, Manager Accounts, of the said business concern, who is an attorney holder of the complainant Smt. Rashmi Gupta. Copy of power of attorney has been annexed with the complaint. In the complaint it is alleged that petitioner No.1 is a partnership concern/firm and petitioner No.2 is one of its partners who is incharge and responsible for conduct and control of business of the partnership firm. It is further alleged that accused No.1 through accused No.2 approached the complainant in the month of Dec. 2007 and requested the complainant for providing financial assistance in the shape of loan of Rs. 3 lacs. The petitioners promised that the loan amount will be repaid to the complainant within a period of two months. The complainant acting on the said request and promise of the petitioners accordingly advanced loan amount of Rs.3/ - lacs by issuance of cheque No. 1257659 dated 19.12.2007 drawn on the Citizen Co -operative Bank branch office Kanak Mandi issued in the name of petitioner No.1. It is further alleged in the complaint that the cheque amount was paid to the accused by banker of the complainant which fact has been confirmed by the bank by issuance of certificate dated 31st of Sept. 2007.

(3.) THE case of the respondent is that even after two months petitioners did not pay back the loan amount which was borrowed by them from the respondent, repeated requests were made, which evoked no response. However, respondent No.2 issued cheque No. 885655 dated 22nd March 2007 in the capacity of partner of the partnership firm of petitioner No.1 which was to be drawn on "Punjab National Bank" Jammu Tawi. The cheque was issued for an amount of Rs. 3/ - lacs, which was borrowed by the petitioners. The cheque was deposited with his bank "Citizen Co -operative Bank B/O Kanak Mandi" for its presentation and for its encashment, cheque was dishonored by banker of the petitioners for the reason "account closed". The respondents accordingly sent registered notice through ld counsel Sh. Harshwardhan Gupta, to the petitioners and after failure of the petitioners to repay the borrowed amount and liquidate the debt, the complaint was filed by Smt. Rashmi Gupta, through her attorney holder, praying therein that the petitioners have committed the offence which is punishable in accordance with law and petitioners be further directed to pay double the amount of the cheque which consists Rs.6/ - lacs. The ld. Trial Magistrate after considering the complaint and the statement of the attorney holder of the complainant being satisfied prima -facie about commission of offence took cognizance thereof u/s 138 of the Act of 1881. Vide order dated 06th August 2008 and consequently issued process to the petitioners. During pendency of the complaint, the respondents filed application seeking substitution of attorney holder in the complaint, but thereafter filed another application praying therein that she be permitted to prosecute the complaint in person. In the application, it is stated that respondent at the time of filing of the complaint was busy in affairs personal in nature and was also suffering from disc problem. The objections were filed by petitioners to the said application and the ld trial Magistrate vide order dated 17th March 2007 allowed the application and respondent smt. Rashmi Gupta was permitted to prosecute the complaint personally.