Dr. Akhilesh Saraf vs Smt. Usha Tiwari

S.N. Aggarwal, J.

This petition is in second round of litigation. Respondent had filed a complaint case u/s 138 of the Negotiable Instrument Act, 1881 against the petitioner on accusation that he had business dealings with him and during the course of business dealings, he had given him an account payee cheque of Rs. 3,70,000/- dated 15.05.2007 drawn on State Bank of Indore Branch purported to be signed by S.K. Saraf as proprietor of M/s Vinayak Herbal.

The petitioner, on being summoned by the trial Court, produced a copy of the bank statement to prima facie show that he was neither a signatory to the cheque in question nor he was the proprietor of the firm on whose behalf the cheque in question was issued in favour of the complainant. Since the Court below had taken cognizance against the petitioner, the petitioner challenged the said cognizance order in case being M. Cr.C. No. 8083/2009 which was disposed of by this Court vide its order dated 26.11.09 reserving opportunity for the petitioner to move a fresh application before the trial Court for review of cognizance order stating the details on the basis of which he claims that he has not committed any offence. The trial Court was directed by this Court vide its earlier order to pass fresh order on merits without being influenced with the fact of taking cognizance against the petitioner. Pursuant to the said earlier order of this Court, the petitioner filed application before the trial Court for recall of cognizance order and this application has been dismissed by the trial court vide impugned order dated 20.03.2010. Aggrieved by the said order the petitioner has filed this petition.

I have heard the arguments of the learned Counsel for the petitioner and also of Mr. Amit Lahoti appearing on behalf of the respondent/complainant.

The Court below has noted in the impugned order that the petitioner had produced before it the copy of statement of bank account from which the cheque in question was allegedly given to show that he has nothing to do with the business of the firm M/s Vinayak Herbal or with the issuance of cheque in question. It is further noted by the trial court in the impugned order that a perusal of the said bank statement shows that the petitioner was not the proprietor of the firm which had issued the cheque in question to the complainant.

Mr. Lahoti appearing on behalf of the respondent/complainant has argued that the court below can prosecute the petitioner for offence u/s 420 of IPC, as according to him the petitioner has cheated him by issuing the cheque in question from the bank account of accused''s brother. I do not find any merit in this contention of the learned Counsel for the respondent/complainant.

The fact of the matter is that the cheque in question on the basis of which complaint u/s 138 of Negotiable Instrument Act was filed by the respondent against the petitioner was issued by one Shri S.K. Saraf purporting himself to be the proprietor of the firm M/s Vinayak Herbal. The petitioner has produced prima facie evidence before the court below to show that he had nothing to do with the business of the firm which had issued the cheque in question to the complainant. This Court is of the opinion that essential ingredients of Section 138 of Negotiable Instrument Act are not satisfied against the petitioner and therefore the case u/s 138 of Negotiable Instrument Act cannot proceed against the petitioner.

In the opinion of this Court, the cognizance taken by the Court against the petitioner for offence u/s 138 of Negotiable Instrument Act is without jurisdiction. The impugned order cannot stand the test of judicial scrutiny and is liable to be set aside. Accordingly, this petition succeeds. The impugned order is set aside. The respondent may take appropriate legal remedy against the concerned persons as may be available to him as per law. Needless to say private complaint filed by the respondent against the petitioner u/s 138 of Negotiable Instrument Act is also quashed.