Narendra v. Shiv Construction), under Section

1. Heard Sri Ajay Kumar Upadhyay, learned counsel for the applicant and Sri Moti Lal, learned A.G.A. for the State.

2. The applicant herein has filed the present application u/s 528 B.N.S.S. for quashing the summoning order dated 25.4.2022 in Complaint Case No.221 of 2021 (Narendra Vs. Shiv Construction), under Section 138 of the N.I. Act, Police Station Sardhana, District Meerut, pending in the court of Judicial Magistrate Sardhana, District Meerut as well as Revisional Order dated 24.4.2024 passed by Additional Sessions Judge/FTC, Court Meerut in Criminal Revision No.420 of 2022 (M/s Shiv Construction Vs. Narendra Kumar Tyagi and another.

3. Learned counsel for the applicant has submitted that a complaint stood lodged by the opposite party no.2 in the month of December, 2021 against the applicant and his wife Smt. Manju with an allegation that the opposite party no.2 owns a firm by the name of Shri Balaji Associates and there happened to be an agreement between the opposite party no.2 and the applicant with regard to sale and purchase or other allied activities of certain building material to the tune of Rs.29,95,000/-. He has further submitted that as per the allegations contained in the complaint, a cheque bearing no.000018 of UCO Bank dated 1.11.2021 was drawn which when presented in the bank on 15.11.2021 was dishonoured on account of account closed and thereafter a statutory demand notice was issued on 22.11.2021 which according to the complaint was served upon the applicant on 25.11.2021. He has also submitted that the summoning order as well as the revisional order fails to consider the most important fact that as per the own case of the opposite party no.2, the applicant happens to be the partner/sole proprietor of Shri Balaji Associates, thus Shri Balaji Associates ought to have been the complainant as he was the payee and the holder of the instrument of the document and thus according to him the complaint itself was not maintainable. He has next submitted that even from the perusal of page 41 and 42 of the paper book, it would reveal that on the basis of documents which happens to be an invoice such a huge amount has been shown to be due against the applicant which was liable to be paid by the applicant to the opposite party no.2 and the said document does not bear the signature also of the opposite party no.2, thus the said document cannot be used as tool to enforce any legally enforceable debt or liability of opposite party no.2. He further seeks to rely upon that the decision of the Hon'ble Apex Court in the case of M/s Kumar Exports Vs. M/s Sharma Carpets 2009 (1) J.T. 20. He also submits that unnecessary the wife of the applicant had been roped in and made as a party in the complaint itself.

4. Learned AGA has opposed the application and according to him summoning order as well as revisional order cannot be said to be suffering from any infirmity.

5. I have heard the submissions so made across the bar and perused the record carefully. There are two questions which have been sought to be raised by the applicant. Firstly regarding the locus of the opposite party no.2 in lodging the complaint. According to him the complainant itself is a firm, thus either it should have been represented through a partner while making a firm as a party, he submits that the complaint is not maintainable. He further submits that in case it was a partnership firm then authorisation letter ought to have been there which is lacking as there is no recital in the complaint. I am afraid the said submission cannot be accepted for the simple reason that this Court in the case of Abhishek Jain vs. State of U.P. & others, (2023) 0 Supreme (Alld.)1581 in para 16 has observed as under:- "16. From the aforesaid observations made by the Apex Court, it is crystal clear that if the cheque is issued in the name of a firm, whether proprietorship or partnership firm, the proprietor or the partner as the case may be, becomes the holder in due course and he can sue in his own name and it is not necessary for him to sue in a trading name, though others can sue such firm in the trading name. Therefore, the instant complaint filed by the opposite party no.2, claiming himself to be a proprietor of the said firm in whose name the said cheque is issued by the applicant herein, in the considered opinion of this Court, complaint is maintainable. Even if the contention of applicant be accepted that the said Raj Rajeshwari Enterprises is a partnership and not a proprietorship firm, it will not help the applicant herein as even the partnership firm does not have a different legal identity and is not a juristic person. Therefore, a partner of the firm also becomes the holder in due course of the cheque within the meaning of Section 142 (1) of the N.I. Act. Thus, the complaint even on behalf of the partner of a firm in his own name is maintainable. Otherwise, also in the instant case, the applicant does not dispute that the cheque was issued in the name of the said Raj Rajeshwari Enterprises and the said cheque was dishonoured and demand notice was issued by the opposite party no.2, he has failed to comply with the said notice. Therefore, in view of the presumption under Section 139 of the N.I. Act and as per the law laid down by the Apex Court, this Court does not find any good ground to interfere in the instant case in exercise of jurisdiction under Section 482 Cr.P.C. "

6. Even otherwise the Hon'ble Supreme Court in the case of M.M.T.C. Ltd. and another vs.MEDCHL Chemicals and Pharma (P) Ltd. and another (2002) 1 SCC 234 had the occasioned to consider the said aspect of the matter wherein the following was observed:- "11. This Court has, as far back as, in the case of Vishwa Mitter vs. O. P. Poddar reported in (1983) 4 SCC 701, held that it is clear that anyone can set the criminal law in motion by filing a complaint of facts constituting an offence before a Magistrate entitled to take cognizance. It has been held that no court can decline to take cognizance on the sole ground that the complainant was not competent to file the complaint. It has been held that if any special statute prescribes offences and makes any special provision for taking cognizance of such offences under the statute, then the complainant requesting the Magistrate to take cognizance of the offence must satisfy the eligibility criterion prescribed by the statute. In the present case, the only eligibility criteria prescribed by section 142 is that the complaint must be by the payee or the holder in due course. This criteria is satisfied as the complaint is in the name and on behalf of the appellant Company."

7. Now so far as the second contention sought to be raised with regard to the fact that there is no legally enforceable debt or liability so as to attract the provisions of Section 138 of the N.I. Act is concerned, this Court is not required to go into the said aspect at this stage on the basis of the documents available on record particularly when there is nothing on record to substantiate the same barring certain invoices. As regards the submissions made that the said invoices are not signed is concerned, the same is a matter of trial and its effect is to be seen at the stage of trial. There is no quarrel to the proposition law laid down in the case of M/s Kumar Exports (Supra) that a carbon copy of a bill cannot be made a basis to fasten liability of an enforceable debt but that was a case in an appeal when the evidences had been adduced but in the present case the Court is occasioned which a situation at a stage where the summoning order is subject matter of challenge.

8. Accordingly, no case is made out for interference. The present application under section 528 BNSS stands consigned to record. Order Date :- 28.4.2025 piyush

1. Heard Sri Ajay Kumar Upadhyay, learned counsel for the applicant and Sri Moti Lal, learned A.G.A. for the State.

2. The applicant herein has filed the present application u/s 528 B.N.S.S. for quashing the summoning order dated 25.4.2022 in Complaint Case No.221 of 2021 (Narendra Vs. Shiv Construction), under Section 138 of the N.I. Act, Police Station Sardhana, District Meerut, pending in the court of Judicial Magistrate Sardhana, District Meerut as well as Revisional Order dated 24.4.2024 passed by Additional Sessions Judge/FTC, Court Meerut in Criminal Revision No.420 of 2022 (M/s Shiv Construction Vs. Narendra Kumar Tyagi and another.

3. Learned counsel for the applicant has submitted that a complaint stood lodged by the opposite party no.2 in the month of December, 2021 against the applicant and his wife Smt. Manju with an allegation that the opposite party no.2 owns a firm by the name of Shri Balaji Associates and there happened to be an agreement between the opposite party no.2 and the applicant with regard to sale and purchase or other allied activities of certain building material to the tune of Rs.29,95,000/-. He has further submitted that as per the allegations contained in the complaint, a cheque bearing no.000018 of UCO Bank dated 1.11.2021 was drawn which when presented in the bank on 15.11.2021 was dishonoured on account of account closed and thereafter a statutory demand notice was issued on 22.11.2021 which according to the complaint was served upon the applicant on 25.11.2021. He has also submitted that the summoning order as well as the revisional order fails to consider the most important fact that as per the own case of the opposite party no.2, the applicant happens to be the partner/sole proprietor of Shri Balaji Associates, thus Shri Balaji Associates ought to have been the complainant as he was the payee and the holder of the instrument of the document and thus according to him the complaint itself was not maintainable. He has next submitted that even from the perusal of page 41 and 42 of the paper book, it would reveal that on the basis of documents which happens to be an invoice such a huge amount has been shown to be due against the applicant which was liable to be paid by the applicant to the opposite party no.2 and the said document does not bear the signature also of the opposite party no.2, thus the said document cannot be used as tool to enforce any legally enforceable debt or liability of opposite party no.2. He further seeks to rely upon that the decision of the Hon'ble Apex Court in the case of M/s Kumar Exports Vs. M/s Sharma Carpets 2009 (1) J.T. 20. He also submits that unnecessary the wife of the applicant had been roped in and made as a party in the complaint itself.

4. Learned AGA has opposed the application and according to him summoning order as well as revisional order cannot be said to be suffering from any infirmity.

5. I have heard the submissions so made across the bar and perused the record carefully. There are two questions which have been sought to be raised by the applicant. Firstly regarding the locus of the opposite party no.2 in lodging the complaint. According to him the complainant itself is a firm, thus either it should have been represented through a partner while making a firm as a party, he submits that the complaint is not maintainable. He further submits that in case it was a partnership firm then authorisation letter ought to have been there which is lacking as there is no recital in the complaint. I am afraid the said submission cannot be accepted for the simple reason that this Court in the case of Abhishek Jain vs. State of U.P. & others, (2023) 0 Supreme (Alld.)1581 in para 16 has observed as under:- "16. From the aforesaid observations made by the Apex Court, it is crystal clear that if the cheque is issued in the name of a firm, whether proprietorship or partnership firm, the proprietor or the partner as the case may be, becomes the holder in due course and he can sue in his own name and it is not necessary for him to sue in a trading name, though others can sue such firm in the trading name. Therefore, the instant complaint filed by the opposite party no.2, claiming himself to be a proprietor of the said firm in whose name the said cheque is issued by the applicant herein, in the considered opinion of this Court, complaint is maintainable. Even if the contention of applicant be accepted that the said Raj Rajeshwari Enterprises is a partnership and not a proprietorship firm, it will not help the applicant herein as even the partnership firm does not have a different legal identity and is not a juristic person. Therefore, a partner of the firm also becomes the holder in due course of the cheque within the meaning of Section 142 (1) of the N.I. Act. Thus, the complaint even on behalf of the partner of a firm in his own name is maintainable. Otherwise, also in the instant case, the applicant does not dispute that the cheque was issued in the name of the said Raj Rajeshwari Enterprises and the said cheque was dishonoured and demand notice was issued by the opposite party no.2, he has failed to comply with the said notice. Therefore, in view of the presumption under Section 139 of the N.I. Act and as per the law laid down by the Apex Court, this Court does not find any good ground to interfere in the instant case in exercise of jurisdiction under Section 482 Cr.P.C. "

6. Even otherwise the Hon'ble Supreme Court in the case of M.M.T.C. Ltd. and another vs.MEDCHL Chemicals and Pharma (P) Ltd. and another (2002) 1 SCC 234 had the occasioned to consider the said aspect of the matter wherein the following was observed:- "11. This Court has, as far back as, in the case of Vishwa Mitter vs. O. P. Poddar reported in (1983) 4 SCC 701, held that it is clear that anyone can set the criminal law in motion by filing a complaint of facts constituting an offence before a Magistrate entitled to take cognizance. It has been held that no court can decline to take cognizance on the sole ground that the complainant was not competent to file the complaint. It has been held that if any special statute prescribes offences and makes any special provision for taking cognizance of such offences under the statute, then the complainant requesting the Magistrate to take cognizance of the offence must satisfy the eligibility criterion prescribed by the statute. In the present case, the only eligibility criteria prescribed by section 142 is that the complaint must be by the payee or the holder in due course. This criteria is satisfied as the complaint is in the name and on behalf of the appellant Company."

7. Now so far as the second contention sought to be raised with regard to the fact that there is no legally enforceable debt or liability so as to attract the provisions of Section 138 of the N.I. Act is concerned, this Court is not required to go into the said aspect at this stage on the basis of the documents available on record particularly when there is nothing on record to substantiate the same barring certain invoices. As regards the submissions made that the said invoices are not signed is concerned, the same is a matter of trial and its effect is to be seen at the stage of trial. There is no quarrel to the proposition law laid down in the case of M/s Kumar Exports (Supra) that a carbon copy of a bill cannot be made a basis to fasten liability of an enforceable debt but that was a case in an appeal when the evidences had been adduced but in the present case the Court is occasioned which a situation at a stage where the summoning order is subject matter of challenge.

8. Accordingly, no case is made out for interference. The present application under section 528 BNSS stands consigned to record. Order Date :- 28.4.2025 piyush