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Judgment
This criminal misc. petition under Section 482 Cr.P.C. has been filed by the petitioner being aggrieved with the order dated 17.03.2018 passed by the
Judicial Magistrate No.2, Pali (hereinafter to be referred as the ‘trial court’), whereby the application filed by the petitioner for terminating the
proceedings under Section 138 of the Negotiable Instruments Act (for short ‘the NI Act’) against him has been rejected.
The petitioner is facing prosecution under Section 138 of the NI Act before the trial court. The complainant has alleged that M/s Agarwal Textiles
Industries has issued a cheque in his favour, however, the same has been dishonored by the bank and money has not been returned by the M/s
Agarwal Textile Industries and as such the firm, proprietor of the said firm and signatory of the disputed cheque are liable to be prosecuted for the
offence punishable under Section 138 of the Negotiable Instrument Act.
It is admitted position that the cheque in question was issued by one Ganpat Lal in the capacity of the Manager of the firm. During the pendency of
the proceedings before the trial court Ganpat Lal died and at this stage, the petitionerproprietor of the firm, had moved an application with a prayer
that he may be deleted from the array of the accused in the proceedings under Section 138 of the NI Act.
The trial court has rejected the said application vide impugned order while holding that in the complaint under Section 138 of the NI Act, the
complainant has alleged that Ganpat Lal had issued cheque in question on the instruction of the Babu Lal, who happened to be the proprietor of the
firm.
The trial court has observed that the petitioner has not claimed that he has no link with the proprietor firm in the name of which the cheque in question
was issued. The trial court is of the opinion that once cognizance is taken against the petitioner and charges have been framed, the proceedings cannot
be dropped against him.
Learned counsel for the petitioner has argued that as the petitioner is not the signatory of the cheque in question, he cannot be prosecuted under
Section 138 of the NI Act.
Learned counsel for the petitioner has placed reliance on the decision of the Hon’ble Supreme Court rendered in Mrs. Aparna A.Shah vs. M/s
Sheth Developers Pvt. Ltd. & Anr. reported in AIR 2013 SC 3210 as well as the judgment of this Court rendered in Shyam Sunder @ Mangat Ram
Mahajan vs. State of Rajasthan through P.P. & Anr. reported in 2017(3) Cr.L.R. (Raj.) 1272.
Having heard the learned counsel for the petitioner and perused the impugned order.
Having taken into consideration the fact that the proprietor-firm is also one of the accused in the proceedings under Section 138 of the NI Act and the
same is represented through the petitioner as being its proprietor, the claim of the petitioner to drop the proceedings against him is without any merit
when the cheque in question was issued on behalf of firm. Hence, I do not find any illegality in the impugned order passed by the trial court.
So far as the judgment of the Hon’ble Supreme Court in the case of Mrs. Aparna A.Shah (supra) is concerned, the same is distinguishable
because it was not a case wherein the cheque was issued by the proprietor-firm but it was a case wherein the cheque was issued from a joint account
and, therefore, the Hon’ble Supreme Court has held that a person who has not signed the cheque, cannot be prosecuted for the offence punishable
under Section 138 of the NI Act.
The judgment of this Court in Shyam Sunder @ Mangat Ram Mahajan (supra) is also distinguishable on the facts of the case because in that case the
petitioner was prosecuted under Section 138 of the NI Act although he was not related to the firm, in whose name the cheque was issued. But in the
present case, the petitioner is the proprietor of the firm, therefore, the aforesaid decisions are of no help to the petitioner.
Hence, I do not find any merit in this criminal misc. petition and the same is hereby dismissed.