Dhrup Chand vs State Of U.P. And Another
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Allahabad High Court

Dhrup Chand vs State Of U.P. And Another on 29 May, 2025

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:92291
 
Court No. - 73
 

 
Case :- APPLICATION U/S 528 BNSS No. - 19558 of 2025
 

 
Applicant :- Dhrup Chand
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Gaurav Singh Yadav,Rajjan Singh Yadav
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Vikas Budhwar,J.
 

1. Heard Sri Rajjan Singh Yadav, learned counsel for the applicant and Sri Indrajeet Singh Yadav, learned A.G.A. for the State.

2. This is an application under Section 528 of BNSS preferred by the applicant for quashing the entire proceeding of complaint case no. 2938 of 2019, under sections 138 of Negotiable Instrument Act, (Randhir Sachdeva Versus Ganga Prasad Jaiswal and another), Police Station -Gorakhnath, District Gorakhpur.

3. The case of the applicant is that a complaint was lodged by O.P. No.2 against the applicant and one of the partners Ganga Prasad Jaiswal under Section 138 of the N.I. Act with an allegation that with relation to discharge of a liability with regard to purchase of the coal for running the brick-kiln by the name of M/s Om Bricks Field, a cheque was drawn of an amount of Rs.40,00,000/- bearing number "061801" dated 15.06.2019 in favour of of Vishnu Coal Briquettes, which on presentation in the bank on 15.06.2019 was dishonoured, followed by a statutory demand notice dated 08.07.2019 and the complaint. Thereafter, the Court of Addl. Chief Judicial Magistrate-Ist, Gorakhpur proceeded to pass an order dated 07.04.2023 summoning the applicant in Complaint Case No.2938 of 2019.

4. Questioning the summoning order, the present application has been preferred.

5. Learned counsel for the applicant has submitted that the summoning order cannot be sustained for more than one reason. Firstly, the cheque in question was a security cheque, thus it does not answer the description of the offences under Section 138 of the N.I. Act. Secondly, the firm in question being M/s Om Bricks Field was not functioning, as it was closed way back on 01.10.2017 and a communication was made to the Assistant Commissioner, Commercial Tax, Gorakhpur on 19.01.2019. Thus there is no question of drawing of the cheque on 19.06.2019. Thirdly, though the applicant along with one Ganga Prasad Jaiswal was made an accused, but the court below has only summoned the applicant though the Firm is a partnership Firm. Fourthly, the complaint has been preferred by Randhir Sachdeva on behalf of a partnership Firm being Vishnu Coal Briquettes, thus the complainant is neither the drawee, payee or a holder and in absence of any authorization in his favour the complaint could not have been lodged, as the complaint ought to have been preferred by the partnership Firm.

6. Sri Indrajeet Singh Yadav, learned A.G.A. on the other hand submits that once a cheque stood drawn then the presumption of Section 139 of N.I. Act would be there.

7. I have heard the submissions made across the Bar and perused the record carefully.

8. As regards the first contention that the cheque was given as a security is concerned, this Court at the stage of summoning is not required to delve into the said issue, as the same is a matter of trial. In M/s Womb Laboratories Private Limited Vs. Vijay Ahuja & another, (2022) 18 SCC 631, the Hon'ble Apex Court had the occasion to consider the issue as to whether the determination can be done at the stage of summoning when the allegation that the cheque was a security cheque is concerned. The Hon'ble Apex Court has observed as under: -

"In our opinion, the High Court has muddled the entire issue. The averment in the complaint does indicate that the signed cheques were handed over by the accused to the complainant. The cheques were given by way of security, is a matter of defence. Further, it was not for the discharge of any debt or any liability is also a matter of defence. The relevant facts to countenance the defence will have to be proved - that such security could not be treated as debt or other liability of the accused. That would be a triable issue. We say so because, handing over of the cheques by way of security per se would not extricate the accused from the discharge of liability arising from such cheques."

9. The aforesaid law has been followed subsequently in Sunil Todi and others vs. State of Gujarat, (2022) 16 SCC 762.

10. With respect to the closure of the Firm in question w.e.f. 01.10.2017 is concerned, this Court is also not required to go into the said issue, as the same is a matter of trial, particularly when presumption under Section 139 of the N.I. Act would be there. With respect to the non-summoning of one of the partners is concerned, the same cannot in any manner whatsoever, make the summoning order fatal, as in case, the other partner was liable, then the said defect can be cured by summoning him at a later point of time. Lastly, so far as the contention raised that the complaint has been lodged by one of the partners and not by the Firm itself and there is no authorization available on record is concerned, suffice is to say that the partner of a partnership Firm acts as an agent and in view of the provisions contained under Section 18, 19 read with Section 22 of the Indian Partnership Act, 1932, there is no prohibition in lodging the complaint by one of the partners on behalf of the partnership Firm. The said aspect of the matter has been dealt with by this Court in the case of Mohnish Jain and another vs. State of U.P. and another, Application U/S 528 BNSS No. - 30850 of 2024 decided on 27.05.2025, wherein the following was observed: -

"23. Once the law on the said subject is crystallized that a partnership firm is not a legal entity separate and distinguished from his partner and only compendious description of individuals who compose the firm then the question which arises would be of implied authority of a partner on the face of the fact that he is the agent of the firm.

24. A perusal of Section 19 of the Indian Partnership Act would reveal with relation to an implied authority for doing certain works, there are certain exceptions according to which in absence of any usage or custom of trade to the contrary, the partner is not empowered to act, illustrations thereof being (a) to (h) of sub-section (2) of Section 19.

25. A conjoint reading of Section 22 with Section 19 of the Indian Partnership Act, would show that the firm would be bind by the act of the partner on the basis of implied authority. A close reading of the provisions do not in any manner indicate that there has to be an express authority at every stage and point of time with the partner to bind the firm, having been so the word ?implied authority? would not have been employed in Section 19 and 22 of the Indian Partnership Act. It is a matter of common knowledge that there are two types of authorities express or implied. There is no difficulty in express authority and so far as the implied authority is concerned, it is to be proved. In some cases also, option is available with the partnership firm through other partners to ratify the action or conduct of the partner who had done an act in order to bind the firm. What is more important is the employing the word ?in the firm?s name or in any other manner expressing or implying an intention to bind the firm?, which means that a partner can do an act in the name of firm or in any manner expressing or implying an intention to bind the firm. What is, thus, understandable is that a partner may do an act in his own name as a partner but thereafter, if there is an implied authority or even when the said act is ratified then it becomes a legal act and not an act which is prohibited under the partnership act."

11. The allegation that there is no authorization in favour of the O.P. No.2 to file a complaint is concerned, the same cannot be a ground to throttle investigation, as the same is not a factor for interference with the summoning order, as the said issue has also been dealt with in Manish Jain (supra) as the same can be cured at later point of time. Even otherwise, the applicant is the signatory of the cheque.

12. Even otherwise cumulatively analysing the case from four corners of law, this Court is of the firm opinion that the court below has not committed any jurisdictional infirmity so as to warrant interference in the present proceedings.

13. At this stage, learned counsel for the applicant has made a submission that a direction be issued to the court below for his enlargement of bail.

14. Considering the submissions raised at the Bar and the statements so sought to be made by them, the application stands disposed of while observing that in case appropriate proceeding in the form of bail application is preferred before the court below, then the same shall be decided with most expedition strictly in accordance with the law of the land keeping in view the judgment in the case of Satender Kumar Antil Vs. Central Bureau of Investigation, (2022) 10 SCC 51.

Order Date :- 29.5.2025

N.S.Rathour

(Vikas Budhwar, J)