Delhi High Court
Bipin Lalsingh Pagar @ Pagar Bipin ... vs State (Gnct Of Delhi) & Anr. on 28 October, 2024
Author: Neena Bansal Krishna
Bench: Neena Bansal Krishna
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 03rd September, 2024
% Pronounced on: 28th October, 2024
+ CRL.M.C. 2986/2024 & CRL.M.As. 11470/2024, 13676/2024
BIPIN LALSINGH PAGAR @ PAGAR BIPIN LALSINH
S/o Lal Singh Ramchandra Pagar,
R/o Village + Post Sayyad Pimpri,
Taluka/District Nasik,
Pin Code - 422003,
Maharashtra
..... Petitioner
Through: Mr. Fanish Kumar & Mr. Gaurav
Sahdev, Advocates.
versus
1. STATE (GNCT OF DELHI) .....Respondent No. 1
2. TIGER LOGISTICS (INDIA) LIMITED
Through its Manager- Credit Control,
Shri Harmeet Singh,
Address (Regd. Office),
D-174, Ground Floor, Okhla Industrial Area,
Phase - 1, New Delhi - 110020 .....Respondent No. 2
Through: Mr. Satinder Singh Bawa, APP for
State.
Mr. Shubham Tyagi, Advocate for
R-2 through VC.
CORAM:
HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA
JUDGMENT
NEENA BANSAL KRISHNA, J.
1. The present Petition under Section 482 of the Code of Criminal
Procedure, 1973 has been filed on behalf of the petitioner seeking to quash
the Complaint Case bearing No. CC/NI Act/278/2020 under S.138
Negotiable Instruments Act, 1881 with all consequential proceedings arising
therefrom.
2. Briefly stated, respondent No. 2 Tiger Logistics (India) Limited/
Complainant, was having its business relations with the petitioner, petitioner-
Bipin Lal Singh Pagar (accused in the Complaint), the sole Proprietor of his
Proprietorship Firm i.e., M/s Amax Agro Exports, which is engaged in
trading business in agricultural products, mainly fruits and vegetables.
The petitioner's Firm is alleged to have handed over Cheque bearing No.
069190 dated 21.07.2020 drawn on Axis Bank Limited in favour of the
respondent No. 2-Complainant for a sum of Rs. 5,00,000/- in discharge of his
liabilities towards the respondent No. 2/Complainant.
3. The petitioner-accused herein has asserted that the signatory of the
Cheque is one Bhagawat Daulat Gawali, but it bears the rubber stamp of the
Proprietorship Firm of the petitioner-accused which has been dishonestly and
mischievously put under the signatures of Bhagawat Daulat Gawali, which
on presentation was dishonoured vide Cheque Return Memo dated
14.09.2020, with the remarks "Drawer's Signature Differs".
4. In response to the Statutory Demand Notice dated 16.09.2020 under
Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to
as "NI Act, 1881") issued by respondent No. 2-Complainant, petitioner-
accused gave an appropriate Reply stating therein that the sole Proprietorship
Firm has no independent, separate and legal entity. Furthermore, it was
denied that the petitioner-accused had any concern with the Cheque issued
by Bhagawat Daulat Gawali in favour of the respondent No. 2-Complainant.
5. The respondent No. 2-Complainant filed a Complaint under S.138 NI
Act against the petitioner, in which the petitioner-accused was summoned
vide Order dated 01.02.2021. The summoning Order has been challenged on
the ground that the petitioner is not the signatory of the said Cheque and he
has no concern with the transaction in regard to which Bhagawat Daulat
Gawali has issued the Cheque in favour of the respondent No. 2-
Complainant.
6. It is further submitted that the Proprietorship Firm has no independent
identity and it is only the sole proprietor who can be held responsible or
incur liability, and it cannot be made vicariously liable under Section 141 of
NI Act, 1881 for a Cheque which does not bear his signatures. Moreover,
Bhagawat Daulat Gawali is neither an employee nor the Authorised
Representative of the petitioner-accused or his Proprietorship Firm.
7. It is, therefore, asserted that the Summoning Order dated 01.02.2021
suffers from patent illegality and is liable to be recalled.
8. The respondent No. 2 had contested the present petition on the
ground that the Cheque though signed by Bhagawat Daulat Gawali, but is for
and on behalf of the Proprietorship Firm, of which the petitioner-accused is
the sole Proprietor. Therefore, there is no infirmity in the impugned
summoning Order and the present petition is liable to be dismissed.
9. Submissions heard.
10. Section 138 of the NI Act, 1881 is relevant which reads as under: -
"Section 138 Dishonour of cheque for insufficiency, etc., of
funds in the account.
Where any cheque drawn by a person on an account maintained
by him with a banker for payment of any amount of money to
another person from out of that account for the discharge, in
whole or in part, of any debt or other liability, is returned by the
bank unpaid, either because of the amount of money standing to
the credit of that account is insufficient to honour the cheque or
that it exceeds the amount arranged to be paid from that account
by an agreement made with that bank, such person shall be
deemed to have committed an offence and shall, without
prejudice to any other provision of this Act, be punished with
imprisonment for 2[a term which may be extended to two years],
or with fine which may extend to twice the amount of the cheque,
or with both:
Provided ....."
11. The Cheque is essentially a contract whereby the Drawer of the
Cheque undertakes that on presentation, the amount specified in the Cheque
shall be released in favour of the Drawee. Section 138 of NI Act, 1881 is
specific and it involves a Drawer who is the signatory of the Cheque and the
Drawee.
12. In the present case, admittedly, the transactions were between the
respondent No. 2-Complainant and the petitioner/accused, the sole Proprietor
of M/s Amax Agro Exports. Under the law, the Proprietorship Firm has no
separate entity and in fact, it is only the sole Proprietor who can be
summoned. This aspect has also been mentioned by the learned Metropolitan
Magistrate in the Summoning Order dated 01.02.2021, wherein only the
petitioner, as the sole Proprietor, has been summoned, while his
Proprietorship Firm has been held to be having no independent entity.
13. But the core issue which arises is that the Cheque has not been signed
by the petitioner but by one Bhagawat Daulat Gawali, who is neither an
employee nor a Legal Representative of the petitioner or his Proprietorship
Firm. The Cheque may be having the stamp of the Proprietorship Firm, but
there is not a whisper of any averment that he was competent to sign the
cheque for and on behalf of the petitioner-accused.
14. Pertinently, the Cheque in question has been dishonoured on the
ground of signature being different, which again implies that Bhagawat
Daulat Gawali had no authority to sign the Cheque for and on behalf of the
petitioner-accused or his Proprietorship Firm. The Cheque does not bear the
signatures of the petitioner-accused and therefore, cannot be held liable
either for the issuance of Cheque or its consequent dishonour.
15. The assertion of the respondent No. 2-Complainant that Bhagawat
Daulat Gawali had issued the Cheque for and on behalf of the petitioner-
accused in discharge of his liability is not tenable under Section 138 of NI
Act, 1881. This may be a valid ground for filing a Suit for Recovery but
definitely under Section 138 of NI Act, 1881 which is specific and is
applicable only to the Drawer and Drawee of the Cheque, no third party can
be summoned under Section 138 of NI Act, 1881.
16. Therefore, the petitioner-accused not being a signatory to the Cheque,
cannot be summoned in the Complaint Case under Section 138 of the NI Act,
1881 filed for and on behalf of the respondent No. 2-Complainant.
Conclusion: -
17. In the light of the aforesaid discussion, the Summoning Order dated
01.02.2021 is patently illegal and is hereby set aside.
18. The Complaint Case bearing No. CC/NI Act/278/2020 under Section
138 of NI Act, 1881 vis-a-viz. the petitioner is hereby quashed.
19. Accordingly, the present Petition along with pending applications is
hereby disposed of in the above terms.
(NEENA BANSAL KRISHNA)
JUDGE
OCTOBER 28, 2024
S.Sharma
