Smt. Shobha Tripathi And Anr vs Shri Jai Prakash Goyal
2023 Latest Caselaw 602 Chatt

                                                                           CRMP-644-2017
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                                                                                        AFR
              HIGH COURT OF CHHATTISGARH, BILASPUR
                   Criminal Misc. Petition No. 644 of 2017
1.     Smt. Shobha Tripathi, Wife of Dev Prakash Tripathi, aged about
       40 years, Proprietor, Arnav Industries
2.     Dev Prakash Tripathi, Son of R.A. Tripathi, aged about 45 years,
       Letter of Authority Holder, Arnav Industries, 5/H, Heavy Industrial
       Area, Hathkhoj, Police Station Jamul Bhilai, District Durg
       (Chhattisgarh)
[Both Resident of Block No.71, Plot No.08, Nehru Nagar (West), Police
Station Supela, Bhilai, Tehsil and District Durg (Chhattisgarh)]
                                                                          ---- Petitioners
                                          Versus
Shri Jai Prakash Goyal, Son of Late Rampal Goyal, aged about 50
years, Proprietor Jyoti Enterprises, Nandini Road, Chhawni Chowk,
Bhilai, Police Station Chhawni, District Durg (Chhattisgarh)
                                                                        ---- Respondent
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For Petitioners : Mr. Amiyakant Tiwari, Advocate For Respondent : Mr. T.K. Jha, Advocate

---------------------------------------------------------------------------------------------

SB: Hon'ble Shri Justice Deepak Kumar Tiwari

Order On Board 31.01.2023

This petition has been filed by the petitioners under Section 482

of the Code of Criminal Procedure, 1973 (for short "CrPC") seeking

quashment of the criminal proceedings arising out of complaint filed by

the respondent herein being Complaint Case No.2455 of 2015 (Jai CRMP-644-2017

Prakash vs. Smt. Shobha Tripathi and another) pending in the Court of

learned Judicial Magistrate First Class, Durg.

(2) The facts of the case, in brief, are that respondent/complainant

has filed a complaint case under Section 138 of the Negotiable

Instruments Act, 1881 (for short "NI Act") against the petitioners herein

before the Court of learned Judicial Magistrate First Class, Durg

alleging that Cheques bearing Nos. 771819 of Rs.4,50,000/-, 771820

of Rs.11,65,370/- and 771821 of Rs.11,00,000/-, issued by the

petitioners herein in favour of M/s. Jyoti Enterprises of which

respondent/complainant is proprietor, were dishonored when presented

before the bank and same were returned unpaid due to stoppage of

payment at drawer's end. The petitioner No.01 i.e. Smt. Shobha

Tripathi is sole proprietor of M/s. Arnav Industries and the petitioner

No.02 i.e. Dev Prakash Tripathi is husband and also power of attorney

holder of petitioner No.01. The petitioner No.02 is also in-charge and

responsible for day to day business of the firm- M/s. Arnav Industries.

Petitioners' firm- M/s. Arnav Industries has also issued an authority

letter (Annexure-A/5) in favour of the bank authorizing the petitioner

No.02 to operate the bank accounts and lockers of the firm- M/s. Arnav

Industries. Hence, implicating the present petitioners as accused, the

complaint (Annexure-A/1) has been filed by the respondent.

(3) Mr. Amiyakant Tiwari, learned counsel appearing for the CRMP-644-2017

petitioners submits that as the aforesaid cheques were issued on

behalf of the firm, namely, M/s. Arnav Industries and same were signed

by the power of attorney holder i.e. petitioner No.02, therefore, without

impleading the firm- M/s. Arnav Industries as party, the complaint filed

by the respondent/complainant is not maintainable in view of Section

141 of the NI Act. By placing reliance on the judgment of Supreme

Court in the matter of Aneeta Hada v. Godfather Travels and Tours

Private Limited1 he submits that though in the present case the firm-

M/s. Arnav Industries is a sole proprietorship firm, but ratio of Aneeta

Hada (supra) is squarely applied in the present case. He further

submits that as the cheques in question were not in any manner signed

by Smt. Shobha Tripathi (petitioner No.01), who is proprietor of the

firm, therefore, she is not legally liable for dishonor of the said cheques.

By placing reliance in the matter of P.J. Agro Tech Limited and

others vs. Water Base Limited2 leaned counsel submits that Smt.

Shobha Tripathi (petitioner No.01) is not the drawer of the said

cheques, as such, she cannot be held guilty for offence under Section

138 of NI Act.

(4) Mr. Amiyakant Tiwari, learned counsel for the petitioner also

submits that vide letter dated 04 th June, 2014 (Annexure-A/6) the

petitioner No.02, on behalf of M/s. Arnav Industries, has informed the

Chief Manager, Canara Bank, SME Branch, Bhilai to stop payment of

1 (2012) 5 SCC 661 2 (2010) 12 SCC 146 CRMP-644-2017

the aforesaid cheques and has also informed the bank that said

cheques were issued as a security, but due to some difficulty in

negotiation the holder of the cheques is not entitled to collect the

payment and, to the same effect, vide letter dated 10 th June, 2014

(Annexure-A/7) the petitioner No.02 has duly intimated to the

respondent-complainant's firm and requested to return the said

cheques and to take back the goods supplied by him as the goods

which were supplied are of inferior quality. The said registered letter

(Annexure-A/7) was duly received by the complainant's firm on 11 th

June, 2014 and copy of acknowledgment alongwith postal receipt have

been filed alongwith this petition in support of this contention. Mr.

Tiwari, learned counsel for the petitioners further submits that though

petitioners have sent all such intimation to complainant's firm and to

the bank in the month of June, 2014, but after a gap of more than 05

months, the complainant by misusing said cheques issued legal notice

dated 14th November, 2014 under Section 138 of the NI Act to the

petitioners, for which the petitioners have already intimated the

respondent/complainant to return the aforesaid cheques in the month

of June, 2014. Thus, it has been clearly revealed that cheques were

undated and have been misused thereafter. He also placed reliance on

Indus Airways Pvt. Ltd. and others vs. Magnum Aviation Pvt. Ltd.

and another3 to bolster his submissions. Lastly, he emphasized that as

the commercial transaction has not been completed, no legally

3 (2014) 12 SCC 593 : 2014 (2) CGLJ 545 CRMP-644-2017

enforceable liability or debt has arisen on the part of the petitioners.

Hence, prayed for considering all these aspects and, in view thereof,

the continuation of criminal proceedings against the petitioners

amounts to abuse to the process of law therefore, in the interest of

justice, the same deserves to be quashed.

(5) Per-contra, Mr. T.K. Jha, learned counsel appearing for the

respondent submits that as the cheques were given for the goods

supplied to the petitioners, therefore, there is a legally enforceable

liability or debt occurred on the part of the petitioners and, even if, the

said cheques were given as a security, the said aspect has to be seen/

considered during the course of trial. Whether there was any

outstanding liability or not on the part of the petitioners is a question of

fact which could have been determined only and only by the trial Court

after recording evidence of the parties and, as such, the disputed

questions of fact cannot be considered or gone into by this Court in a

petition filed under Section 482 of CrPC. He placed reliance on a

decision rendered by the Supreme Court in the matter Sunil Todi and

others vs. State of Gujarat and another 4 and has drawn attention of

Para-29 of the said judgment, which reads as under:

"29. The order of this Court in Womb Laboratories holds that the issue as to whether the cheuqes were given by way of security is a matter of defence. This line of reasoning in Womb Laboratories is on the same plane as the observations in HMT Watches, where it was held that whether a set of 4 2021 SCC Online SC 1174 : AIR 2022 SC 147 CRMP-644-2017

cheques has been given towards security or otherwise or whether there was an outstanding liability is a question of fact which has to be determined at the trial on the basis of evidence. The rationale for this is that a disputed question of this nature cannot be resolved in proceedings under Section 482 CrPC, absent evidence to be recorded at the trial."

(6) Mr. T.K. Jha, learned counsel for the respondent further submits

that in the instant case the cheques were issued by sole proprietorship

firm- M/s. Arnav Industries and it is not in dispute that the petitioner

No.01 is the sole proprietor of the said firm and she has executed

power of attorney in the name of her husband i.e. petitioner No.02 to

transact all banking transaction and, in the said capacity the petitioner

No.02 has issued the cheques in question. Therefore, only on the basis

that petitioner No.01 has not signed the cheques, she cannot escape

from the criminal liability more particularly when it is well settled that a

sole proprietorship firm has no separate legal identity and, in fact, it is a

business name of the sole proprietor. Sole proprietorship firm would not

fall within the ambit and scope of Section 141 of the NI Act, thus, there

is no technical defect in the complaint filed by the respondent-

complainant. Lastly, he submits that as there is no dispute that the

cheques in question were issued by the petitioner No.02 under the

authority of petitioner No.01, therefore, presumption under Section 139

of the NI Act is liable to be drawn in favour of the holder, as there is

burden on the petitioners to disprove the fact that the cheques in

question are not issued for any legal recoverable debt or liability.

CRMP-644-2017

(7) I have heard learned counsel for the parties considered their rival

submissions made herein above and went through the record with

utmost circumspection.

(8) It is not in dispute that M/s. Arnav Industries is a sole

proprietorship firm and the petitioner No.01 is its sole proprietor and

she has executed power of attorney in favour of the petitioner No.02 for

transacting day to day business of the firm and also to transact the

banking transaction. It is also not in dispute that the cheques for which

complaint has been filed were drawn in the name of proprietorship firm

concerned by the petitioner No.02. The contentions raised by learned

counsel for the petitioners that as the goods, which were supplied in

response to the purchase order of an oral agreement, were received to

be of inferior quality, therefore, the bank was informed to stop payment

and the complainant was requested to take back the said goods and

return the said cheques and commercial transaction was not

completed. No legally enforceable liability or debt occurred on the part

of the petitioners, as cheques were issued in shape of advance

payment and, as the goods were not accepted, there is no liability on

the petitioners. In the matter of Sunil Todi (supra) their Lordships of

Supreme Court discussed all such issues about issuance of cheques

as a security and has also examined the ratio of Indus Airways Pvt.

Ltd. (supra) and finally held that all such disputed questions of this

nature cannot be resolved in a proceedings under Section 482 of CRMP-644-2017

CrPC. In this regard, the observations made in Para-29 of the judgment

mentioned herein-above is significant. Further, in the instant case, the

cheques in question have been issued by the sole proprietorship firm,

therefore, the principle laid down in the matter of Aneeta Hada (supra)

relating to applicability of Section 141 of the NI Act is clearly

distinguishable and not applicable under the facts and circumstances

of the present case.

(9) In view of the aforesaid discussions, this Court does not find any

substantial ground to interfere in the criminal proceedings i.e. complaint

filed by the respondent against the petitioners before the Court of

learned JMFC, Durg by invoking power vested under Section 482 of

CrPC. Resultantly, this petition is liable to be and hereby dismissed.

However, it is made clear that the observations made in this order are

only to the extent of deciding the instant petition and this Court has not

expressed any opinion on the merits of the case. The petitioners are at

liberty to raise all such issues and grounds of their defence before the

learned trial Court as available to them in accordance with law and the

learned trial Court shall consider and decide the same without being

influenced by the observations made in this order.

Sd/-

(Deepak Kumar Tiwari) Judge [email protected]