V.K. Shrivastava, J.
1. Being aggrieved by the order dated 24-3-2003 passed in Criminal Case No. 1267/2003 by the Chief Judicial Magistrate, Durg, whereby taking cognizance against the petitioners alongwith another co-accused Vinod Mandhana under Section 138 of the Negotiable Instruments Act, 1881, (for short, 'the Act') the petitioners have filed this petition under Section 482 of the Cr.PC for quashing the said order and all subsequent proceedings against the petitioners.
2. One partnership firm - Aarti Engineer Company, was constituted on 1-4-1994 comprising partners namely Kanhaiyalal Mandhana, Vinod Mandhana and Smt. Suman Mandhana for carrying the business under the name and style of Aarti Engineering Company. Subsequently, the firm was reconstituted on 1-4-1998 wherein one of the partners namely Vinod Mandhana took retirement and new partner joined in the said firm. Vinod Mandhana issued a cheque dated 1-10-2002 bearing No. 357940 of Canara Bank, Itwari, Nagpur for Rs. 20,00,000/- to be paid to respondent No. 1 Vijay Dwivedi. The said cheque, on being submitted for encashment, was bounced and returned to respondent No. 1 with letter dated 15-10-2002 issued by the Canara Bank assigning reasons that no sufficient fund was in balance in the account and the payment was stopped by the drawer. Respondent No. 1 issued legal notice on 8-1-2003 to the petitioners and another co-accused Vinod Mandhana and thereafter as no amount has been paid to him, he filed a complaint against all the petitioners and co-accused Vinod Mandhana.
3. Respondent No. 1 in his complaint alleged that petitioner Nos. 2 to 5 and Vinod Mandhana who are the partners of firm M/s. Aarti Engineering Company and are well-known to him, took a loan of Rs. 20,00,000/- for their business and to repay the same Vinod Mandhana one of the partners in the capacity of partner of firm M/s. Aarti Engineering Company, issued a Cheque No. 357940, dated 1-10-2002 of Canara Bank and received back all the documents executed by petitioners and Vinod Mandhana for taking the loan. The said cheque was tendered by respondent No. 1 to his bankers- Bhilai Nagarik Sahakari Bank Ltd., Bhilai Nagar on 10-10-2002, who vide their letter dated 3/1/03 returned the cheque being bounced. Therefore, respondent No. 1 demanding the amount sent a legal notice to the petitioners and Vinod Mandhana and thereafter when the debt was not made good, filed a complaint under various Sections of the IPC and also under Section 138 of the said Act, in the Court of Chief Judicial Magistrate, Durg, who after recording necessary evidence, considering complainant and documents, registered a case vide order dated 24-3-2003 against all the petitioners and Vinod Mandhana under Section 138 of the said Act and thereafter the proceeding in his Court continued.
4. Now, petitioners are challenging the order vide which case against them has been registered and the criminal proceeding is in progress on the grounds that they have not taken any loan from respondent No. 1 nor on their behalf any cheque has been issued and on the relevant date Mr. Vinod Mandhana was not the partner of the said firm. The legal notice issued by respondent after the period of limitation, violates the mandatory provisions of Section 138 of the said Act. Therefore, neither cognizance against the petitioners for committing any offence under Section 138 of the said Act, was permissible to be taken nor in violation of required legal provision proceeding against them could have been continued.
5. Learned Counsel for both the parties have heard at length.
6. For quashing the criminal proceeding from time to time Hon'ble the Supreme Court led various principles and on fulfilling the conditions as laid down by Hon'ble the Supreme Court the person, taking remedy for quashment of criminal proceeding, shall be entitled to have relief prayed for.
7. In State of Haryana and Ors. v. Choudhary Bajanlal and Ors., reported in AIR 1992 SC 604, Hon'ble the Apex Court has listed various criteria and on fulfillment of those, under Section 482 of the Cr.PC for quashment of criminal proceeding can be ordered. For cases arising out of complaint following are those criteria :-
'(1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations made in the FIR or complaint or so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(3) Where there is an express legal bar engrafted in any of the provisions of the Code of the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(4) Where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge'.
8. In Modi Cements Ltd. v. Kuchil Kumar Nandi, reported in (1998) 3 SCC 249, the Apex Court has observed as under :-
'The Court taking cognizance of the complaint under Section 138 of the Act is required to be satisfied as to whether a prima facie case is made out under the said provision. The drawer of the cheque undoubtedly gets an opportunity under Section 139 of the Act to rebut the presumption at the trial. A petition under Section 482, Cr.PC is tenable when no offence even prima facie was made out in the complaint. But the application thereof will depend upon the averments made in the complaint'
9. Respondent No. 1 filed a complaint against all the petitioners and Vinod Mandhana under Section 138 of the said Act and under Sections 420, 467, 471 and 120B of the IPC, stating that petitioner No. 1 is a partnership firm and petitioners No. 2 to 5 and Vinod Mandhana are partners thereof, who have authority to sign the cheques and other documents and all the partners of the firm were from time to time taking loan with respondent No. 1 and they took loan of Rs. 20,00,000/- from respondent No. 1 for utilizing the amount in their business. Respondent No. 1 demanded the loan amount with petitioners and Vinod Mandhana and consequent to that Vinod Mandhana as a partner of petitioner No. 1 issued a cheque No. 357940, dated 1-10-2002 of Rs. 20,00,000/- of Canara Bank, Nagpur and got back all the documents executed for receiving the loan amount. Cheque was presented by respondent No. 1 to his Banker Bhilai Nagarik Sahakari Bank Limited, Bhilai Nagar on 10-10-2002 for collection. But the said cheque was dis-honoured on account of insufficient fund in the credit of petitioners and Vinod Mandhana. Bhilai Nagarik Sahakari Bank Limited, Bhilai Nagar, vide letter dated 3-1-2003 informed the respondent No. 1 that the cheque delivered to them for collection has been dis-honoured. Respondent No. 1 issued registered demand notice on 8-1-2003 to the petitioners and Vinod Mandhana. The registered demand notice issued to Vinod Mandhana returned back unserved whereas on others the said notice has been served on 13-1-2003, 17-1-2003 and 18-1-2003. The amount has not been paid by any of the petitioners or Vinod Mandhana.
10. Learned Lower Court recorded the statements of respondent No. 1 and respondent No. 1 - Vijay Dwivedi in his statement supported all the assertions made by him in his complaint. Learned Chief Judicial Magistrate, taking into account the complaint, documents and statements on record, registered the case against all the petitioners and Vinod Mandhana on 24-3-2003.
11. Petitioners' contention is that on the date, i.e., 1-10-2002 when the said cheque was issued, Vinod Mandhana was not the partner of the partnership firm and as such petitioners are not responsible for ex-partner -Vinod Mandhana. Respondent No. 1 failed to disclose how the petitioners are In- charge and are responsible to the partnership firm who are carrying business in the name of petitioner No. 1 for conduct the business of that firm. Canara Bank, Nagpur, vide their letter dated 15-10-2002 dishonoured the cheque stating that 'due to insufficient fund' and 'payment was stopped by the drawer'. The said cheque was not bounced on the ground that the person signing the cheque was not the partner of the petitioner No. 1 or the cheque issued by Vinod Mandhana, is a cheque issued by a incompetent person or that there is difference of signature. It is clear that if in fact the partnership firm wherein Vinod Mandhana was partner, was reconstituted and Vinod Mandhana took retirement, then either petitioners have not informed the said fact to their bankers or that still there is some deed where Vinod Mandhana as a partner has right to exercise his authority as partner in the said business. Therefore, prima facie, it was there that Vinod Mandhana on behalf of the partnership firm has issued the cheque. Apart from that, if he was not the partner and has fraudulently issued the cheque then it is open to the petitioners to take the defence in trial and prove the same by substantive evidence.
12. Petitioners themselves have filed a copy of the deed of reconstituted partnership firm and the said deed specifically says that 'all the partners shall take active interest in the conduct of business of the firm and shall remain true accounts and full information of all the things effecting the partnership to each other and shall also remain true and faithful to each other'. This clause itself is sufficient to hold, prima facie, that petitioner Nos. 2 to 5 are also In-charge and responsible for the conduct of business of the petitioner No. 1. Apart from that respondent No. 1 in his complaint as well as in his statement has clearly unveiled that he is well-known to all the partners of the said partnership firm and for the business of petitioner No. 1, the amount has been taken by Vinod Mandhana as partner of the said firm who being a partner, has issued the cheque.
13. From the complaint and the statement of complainant it is clear that petitioner and Vinod Mandhana took the loan and for its repayment issued the cheque. The said cheque was returned through bankers to him for want of sufficient fund in the account of petitioners. The information was received by respondent No. 1 on 3-1-2003 and within the prescribed period, he served registered demand notice in accordance with Section 138 of the said Act and within the required period of one month he has filed the complaint. Therefore, there appears nothing to substantiate that no offence has been made out from the complaint and the statement of complainant against all the petitioners and Vinod Mandhana.
14. Therefore, the petition filed by the petitioners under Section 482 of the Cr.PC is devoid of any substance and is, therefore, liable to be dismissed and is accordingly dismissed.