Mrs. Rekha Vij vs Naresh Kumar

V.M. Jain, J.

1.--This order shall dispose of the above mentioned three Crl. Misc. Petitions, as common questions of law and facts are involved in all the three

cases. For the purpose of convenience, facts of Crl. M. No. 8030-M of 1998 have been noticed.

This is a petition u/s 482, Cr.P.C., filed by the accused-petitioners, seeking quashment of the criminal complaint, copy Annxeure P3, summoning

order dated 1.3.1997, copy Annexure P4 and the subsequent order dated 20.2.1998, copy Annexure P5, passed by the Judicial Magistrate.

Facts, which are necessary for the disposal of the present petition are that Naresh Kumar, complainant-respondent had filed a complaint, copy

Annexure P3, u/s 138 of the Negotiable Instruments Act (hereinafter referred to as the Act), read with Sections 406: 420 and 34, IPC against the

accused-petitioners, alleging therein that accused No. 2-Bhisham Kumar Vij was carrying on the business under the name and style of M/s. D.M.

Products and that in July, 1995, accused No. 2 had made purchases from the complainant. It was alleged that accused No. 2 issued various

cheques (detailed in para 6 of the complaint) from the Bank account of his wife-accused No. 3 namely Smt. Rekha Vij. It was alleged that

accused No. 3 stood surety for the discharge of the debts. It was alleged that out of eight cheques, the first two cheques when presented to the

Bank were returned as dishonoured with the Bank memo ""refer to drawer"" and ""payment stopped"". It was alleged that complaints were filed which

were pending in the Courts, where the accused had been ordered to be summoned. It was alleged that, thereafter, the remaining six cheques were

also presented in the Bank and the same were also dishonoured with the objection ""payment stopped by the drawer"". It was alleged that the

complainant got a legal notice issued and in spite of the expiry of the statutory period, the accused had failed to make the payment to the

complainant. It was alleged that accused No. 3 Smt. Rekha Vij was the manager, incharge and was responsible to the firm for the conduct of the

business of the firm and that the offence was committed with the active consent and connivance and is attributable to the negligence on the part of

accused No. 3, who had claimed herself to be manager of the said firm. It was alleged that in this manner the accused had committed offence u/s

138 of the Act read with Sections 406: 420: 34, IPC.

After recording preliminary evidence, learned Judicial Magistrate, vide order dated 1.3.1997, copy Annexure P4, ordered summoning of all the

three accused u/s 138 of the Act. After the accused had put in appearance, learned Judicial Magistrate ordered issuance of notice of accusation

upon all the three accused, vide order dated 20.2.1998, copy Annexure P5. Aggrieved against the aforesaid criminal complaint, summoning order

and order ordering the service of notice of accusation, all the three accused filed the present petition in this Court u/s 482, Cr.P.C. for quashment.

While issuing notice in the present petition, this Court had ordered issuance of notice to the respondent only qua petitioner No. 1 and had

declined to issue notice qua two other petitioners and it was further directed that proceedings before the Court below qua petitioner No. 1 shall

remain stayed. Petitioner No. 1 is Smt. Rekha Vij, who was accused No. 3 in the criminal complaint. In the present petition u/s 482, Cr.P.C., it

was alleged that no case for proceeding against petitioner No. 1 (accused No. 3) was made out. It was further alleged that notice was defective as

higher amount was demanded than the alleged due amount.

In the written reply filed by complainant-respondent, it was alleged that petitioner No. 1, who is accused No. 3 could not be allowed to urge

that the complaint against her was not maintainable, especially when the issuance of cheques, under reference, was admitted by the accused

petitioners and petitioner No. 1 is the manager and incharge of the business of her husband, being run under the name and style of B.M. Products.

It was alleged that notice was issued in respect of all the cheques.

At the time when the case came up from hearing before me, no one came present either on behalf of accused petitioners or on behalf of the

respondent-complainant.

I have gone through the record carefully and considered the matter.

As referred to above, all the three petitioners were summoned as accused by the learned Magistrate and notice of accusation was also ordered

to be issued upon all the accused petitioners. The present petition was also filed qua all the accused petitioners. However, notice to the

complainant-respondent was issued only in respect of petitioner No. 1, namely Smt. Rekha Vij, who is accused No. 3, in this case and prayer for

quashment on behalf of accused petitioners 2 and 3 was impliedly declined. For the purpose of decision of this petition, it is to be seen as to

whether any case for quashing the criminal complaint, summoning order and order, ordering service of notice of accusation is made out qua

petitioner No. 1-Ms. Rekha Vij. In the criminal complaint, copy Annexure P3, it was specifically alleged by the complainant Naresh Kumar that

cheques in question were issued by accused No. 3-Mrs. Rekha Vij (who is petitioner No. 1 in this petition) and that she had stood surety for the

discharge of the debts of her husband, besides being incharge and responsible to the firm for the conduct of his business. It was also alleged that

offence was committed with the consentand active connivance and squarely attributable to the negligence of the accused and as such they were

liable. In my opinion, accused petitioner Smt. Rekha Vij, having issued the aforesaid cheques, cannot be allowed to urge that she has no concern

with the firm or with the repayment of money due. The question as to whether Mrs. Rekha Vij is working as manager of the firm and/or is

responsible and/or is incharge of the firm for the conduct of its business, etc. would be gone into by the Court during trial. Her denial in the present

petition that she is not manager and is not concerned with the said firm, in my opinion, cannot be made the basis for quashing this criminal

complaint and other subsequent proceedings. In para 7 of the petition, it has been admitted that all the cheques were drawn on the account of

petitioner No. 1 Mr. Rekha Vij. If she had no concern with the firm or its business, there would be no question for her for issuing as many as eight

cheques to the complainant. Various cheques having been dishonoured and the accused having failed to make the payment within the specified

period, in my opinion, would be, prima facie, an offence u/s 138 of the Act. That being so, in my opinion, the complainant had the right to file the

complaint and the Court had rightly ordered summoning of the petitioner No. I as accused and had rightly ordered service of notice of accusation

upon her.

So far as notice, copy Annexure P2 is concerned, there is a reference about the issuance of all the eight cheques and it has been alleged that

two of the cheques were earlier presented and dishonoured and that subsequently the remaining six cheques were presented and were

dishonoured. Accordingly, notice was serviced upon the accused to pay the entire amount within the specified period, failing which complaint u/s

138 of the Act shall be filed. In my opinion, prima facie, there is nothing wrong with the notice and at this stage the criminal complaint, summoning

order and the order regarding service of notice of accusation could not be set aside or quashed even with regard to petitioner No. 1 Mr. Rekha

Vij, on the ground that notice was defective.

In view of my detailed discussion above, in my opinion, there is no merit in this petition dismissed.

While issuing notice, vide order dated 30.4.1998, proceedings in the Trial Court qua petitioner No. 1 were stayed. It is made clear that the

stay order stands vacated and the Trial Court shall proceed against petitioner No. 1 namely Mr. Rekha Vij, as well, in accordance with law. Office

shall send a copy of this order to the Trial Court for strict compliance.