Jyotsana Parashar vs H R Kaushik
2012 Latest Caselaw 2666 Del

*               THE HIGH COURT OF DELHI AT NEW DELHI

+                     CRL.M.C. 4284/2011
                                            Date of Decision: 24.04.2012

JYOTSANA PARASHAR                                   ..... Petitioner
                Through               Mr. Sachin Sharma, Advocate

                      Versus

H R KAUSHIK                                        ..... Respondent
                           Through    Respondent in person.

CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA

M.L. MEHTA, J. (Oral)

1. This petition is under section 482 Cr. P.C. seeking quashing of summoning order dated 27.01.2011 passed by the MM in a complaint under section 138 of N.I. Act filed by the respondent.

The respondent/complainant had filed a complaint under section 138 of N.I. Act read with section 142 (b) of the N.I. Act. The said complaint was filed by the respondent against the petitioner and her husband Chandra Shekhar Parashar, arrayed as accused No. 2 and 1 respectively. The allegations were that Mr. Parashar was dealing with him for the purchase of his chamber for his wife (petitioner) It was alleged that an agreement dated 16.12.2009 was entered into between the complainant and Mr. Parashar in the presence of the petitioner and from the beginning to the end all the relevant documents were signed by him and the payments were also made by him from his bank account for and on behalf of his wife. It was averred that the accused No. 2 i.e. the

petitioner did not talk to the complainant and thus remained a sleeping party in the whole transaction despite the fact that the Chamber was purchased in her exclusive name. It was alleged that Mr. Parashar remained defaulter and repeatedly violated terms and conditions of the said agreement. The complainant had also given the details of the payments made by Mr. Parashar to him by way of different cheques which on presentation were encashed. However, according to the petitioner, the balance amount of Rs. 15,000/- + 5,400/- towards electricity arrears i.e. a total amount of Rs. 20,400/- remained to be paid by Mr. Parashar. This amount was paid by him by way of an account payee cheque on 09.04.2010, which cheque on presentation got dishonoured. Thereupon he served a legal notice to Mr. Parashar calling upon him to pay the amount, but he failed to make the payment. It was alleged that since all the documents of purchase of said flat were executed in favour of accused No. 1 i.e. the petitioner herein, she is jointly liable along with her husband.

The learned MM vide the impugned order dated 27.01.2011 ordered issue of summons to both the accused persons namely the petitioner and her husband Mr. Parashar. The petitioner has assailed the impugned order on various grounds.

I have heard the learned counsel for the petitioner and the respondent in person.

The sum and the substance of the contention which were raised by the respondent/complainant and are that since the chamber in question was purchased by Mr. Parashar in the name of his wife i.e. the

petitioner, and agreement and documents were executed in her favour, she is jointly liable along with her husband Mr. Parashar. It was submitted that she would be liable irrespective of the fact that all the cheques, including the cheque in question, were given by her husband and the notice under section 138 N.I. Act was also given to him and not to the petitioner. It was also his submission that the petitioner and her husband were the owners of the company and she being one of the persons incharge and responsible for the affairs of the company, was vicariously liable under section 141 N.I. Act.

The reading of the complaint as a whole shows that there is not even an iota of averment against the petitioner except that she is the wife of Mr. Parashar and the Chamber was agreed to be purchased by him in her name by way of execution of documents in her favour. Admittedly, the entire dealings and the transactions were made by Mr. Parashar, and the relevant documents were also signed by him. Not only that, even all the payments were also made by him from his bank account to the complainant. It was irrelevant that all these payments were made by him on behalf of his wife i.e. the petitioner. Admittedly, the complainant did not talk with the petitioner and she remained a sleeping party throughout the transaction. The cheques which were encashed as also the cheque in question, which on presentation got dishonoured, were issued by Mr. Parashar from his bank account. It was Mr. Parashar who got the cheque stopped by writing to the drawer bank. The legal notice under section 138 N.I. Act was also got issued by the complainant to Mr. Parashar. No notice under section 138 N.I. Act was

ever issued to the petitioner. None of the ingredients of section 138 N.I. Act were fulfilled qua the present petitioner. The provisions of section 138 N.I. Act being penal were to be construed strictly and could not be applied vaguely against any one. The words "such persons" which imputes deeming liability of commission of offence refers to the person who had given cheque towards any debt or liability and which on presentation got dishonoured. Though a person may be beneficiary of the transaction, but it is the liability of the drawer of the cheque who has issued the cheque in discharge of debt or liability. The relief, if any, the complainant could have against the petitioner, was not under section 138 N.I. Act, but it may be of some civil nature.

With regard to the applicability of section 141 of the N.I. Act, it may be stated that this section is attracted when the person committing an offence under section 138 is a company, every person who, at the time the offence was committed, was in charge of, and responsible to, the company for the conduct of its business as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. The complaint is against two Advocates who are husband and wife and not against the company. The learned counsel for the respondent stated that reply which was received by him from Mr. Parashar showed that these lawyers were running a law Company of four lawyers. This contention is highly misconceived. There is neither any averment regarding the accused persons running a company, nor there is any allegation regarding any of them to be incharge and responsibilities for the conduct of business of

company. The submission of learned counsel for the respondent is highly misplaced.

In view of the above, the petition has no merit and is hereby dismissed.

M.L.MEHTA, J APRIL 24, 2012 awanish