VIPIN DAVAR S/O MADAN LAL Vs. KALYANI ADVERTISERS THROUGH ITS PROPRIETOR DEEPAK GOYAL S/O SHRI BHEEMSEN GOYAL
LAWS(RAJ)-2017-4-243
HIGH COURT OF RAJASTHAN
Decided on April 27,2017

Vipin Davar S/O Madan Lal Appellant
VERSUS
Kalyani Advertisers Through Its Proprietor Deepak Goyal S/O Shri Bheemsen Goyal Respondents

JUDGEMENT

Pushpendra Singh Bhati, J. - (1.)This criminal misc. petition under Section 482 Cr.P.C. has been preferred against the order dated 24.04.2012 passed by learned Additional District & Sessions Judge No.1, Sri Ganganagar in Criminal Revision No.69/2011, whereby the revision petition filed by the petitioner has been dismissed, upholding the order dated 10.06.2008 passed by learned Additional Chief Judicial Magistrate, Sri Ganganagar in Complaint Case No.1093/2009 (552/2008 Old), whereby cognizance for the offence under Section 138 of the Negotiable Instruments Act was taken against the petitioner.
(2.)A complaint was filed against the petitioner under the provisions of Section 138 of the Negotiable Instruments Act, 1881 on 29.03.2008 with the allegation that the petitioner is the proprietor of M/s.Ujjas Advertisement, Ludhiana and he issued two cheques towards discharging the liability against him. Cheque No.463440 dated 15.08.2007 for Rs.60,000/- and Cheque No.463441 dated 20.08.2007 for Rs.60,000/- drawn on Allahabad Bank under his seal and signatures with the assurance that the said cheques were to be honoured. Upon the cheques being dishonoured on 11.02008 on account of stop payment, the case was instituted and notices were issued against the petitioner, and bailable warrants were issued and cognizance order was passed against the petitioner on 10.06.2008. The petitioner challenged the cognizance order principally on the ground that he was not the proprietor of the Firm M/s.Ujjas Advertisement or signatory of the cheques in question, and thus, was not having the liability as per the provisions of Section 138 of the Negotiable Instruments Act.
(3.)On one hand, the revisionary court has rejected the revision petition, but has simultaneously held that the cheques have been signed by Madan Lal Davar. The petitioner had produced copies of the certificates issued by the Allahabad Bank dated 12.04.2012 and 18.04.2012, which are also part of the record of the present case, whereby the Allahabad Bank, which is a nationalized bank, has issued the certificates to the effect that the petitioner is not the proprietor of the Firm concerned, but Madan Lal Davar is the proprietor of the Firm, as per the records of the Bank. Thus, any further proceedings emanating from the cognizance order would be rendered redundant, in view of the apparent fact that the petitioner was not the issuing authority, and as per the record, was not having any capacity as proprietor in the Firm concerned. It will be an abuse of the process of law to continue with the proceedings, whereby a wrong person is prosecuted under the Negotiable Instruments Act, whereas the person responsible would not have any liability.


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