Punjab-Haryana High Court
Gurmeet Kaur vs State Bank Of India on 27 April, 2023
204 2023:PHHC:061479
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-M-55404-2022
Date of Decision: April 27, 2023
GURMEET KAUR ........ Petitioner
Versus
STATE BANK OF INDIA ........ Respondent
CORAM: HON'BLE MR. JUSTICE HARKESH MANUJA
Present: Mr. Suvir Tandon, Advocate and
Mr. Sandeep Wadhawan, Advocate for petitioner.
Mr. Rakesh Gupta, Advocate for respondent.
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HARKESH MANUJA, J. (ORAL)
1. By way of present petition filed under Section 482 CrPC,
prayer has been made for seeking quashing of complaint No.
COMP/10342/17 dated 29.08.2017 filed under Section 138 of
Negotiable Instruments Act pending in the Court of Ld. Judicial
Magistrate First Class, Ludhiana as well as summoning order dated
26.07.2018 passed therein against the petitioner.
2. In the present case, the petitioner stood as guarantor to a
loan transaction availed by one company "M/s. Amco Industrial
Enterprises Pvt. Ltd." (herein-after referred to as Company) from the
complainant/respondent-Bank. On account of default, the Company
issued Cheque No.000104 dated 22.06.2017 amounting to
Rs.35,00,000/- in favour of complainant towards the discharge of loan
amount. The aforesaid cheque on its presentation got dishonoured for
want of sufficient funds, resulting into filing of complaint in question. The
petitioner though not being a Director of the Company was still arrayed
as an accused being guarantor to the aforesaid loan transaction. Vide
TEJWINDER SINGH
2023.04.29 17:30
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2023:PHHC:061479
order dated 26.07.2019, the trial Court summoned the petitioner as an
accused under Section 138 of Negotiable Instruments Act. Aggrieved
thereof, challenging the complaint as well as all subsequent
proceedings, the present petition has been filed.
3. Learned counsel for the petitioner submits that the petitioner
neither happens to be the Director of company nor is responsible for
day to day functioning of the same could not have been summoned for
offence under Section 138 of the Negotiable Instruments Act. Relying
upon the judgment passed by Hon'ble the Supreme Court in case of
"Pooja Ravinder Devidasani Vs. State of Maharashtra", reported as
2015 AIR(SC) 275, learned counsel for the petitioner submits that
petitioner merely being guarantor to the loan transaction cannot be held
vicariously liable under Section 138 of the Negotiable Instruments Act
by invoking Section 141 thereof. Relevant Paragraphs No.29 and 30 of
the said Judgment are reproduced hereunder for reference:-
"29. So far as the Letter of Guarantee is concerned, it gives
way for a civil liability which the respondent No. 2-complainant
can always pursue the remedy before the appropriate Court.
So, the contention that the cheques in question were issued
by virtue of such Letter of Guarantee and hence the appellant
is liable under Section 138 read with Section 141 of the N.I.
Act, cannot also be accepted in these proceedings.
30. Putting the criminal law into motion is not a matter of
course. To settle the scores between the parties which are
more in the nature of a civil dispute, the parties cannot be
permitted to put the criminal law into motion and Courts
cannot be a mere spectator to it. Before a Magistrate taking
cognizance of an offence under Section 138/141 of the N.I.
Act, making a person vicariously liable has to ensure strict
compliance of the statutory requirements. The Superior
TEJWINDER SINGH
2023.04.29 17:30
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2023:PHHC:061479
Courts should maintain purity in the administration of Justice
and should not allow abuse of the process of the Court. The
High Court ought to have quashed the complaint against the
appellant which is nothing but a pure abuse of process of
law."
4. On the other hand, learned counsel representing respondent
No.2 vehemently opposes the prayer made in the present petition while
submitting that the petitioner being guarantor of aforesaid loan transaction
owes the liability towards respondent-Bank in a co-extensive manner and
thus can very well be summoned under Section 138 read with Section 141
of Negotiable Instruments Act.
5. I have heard learned counsel for parties and have gone
through the paper-book. I find substance in the submissions made on
behalf of petitioner.
6. In the present case, the petitioner admittedly stood as a
guarantor to the loan facility availed by the Company from respondent-
Bank. The petitioner is neither a Director nor in any manner in-charge of or
responsible for the day to day functioning of the Company. Besides
making a bald averment regarding the petitioner being in-charge of or
responsible towards the Company, no such material or document has
been provided in the entire complaint to support this averment. The status
of petitioner being a guarantor can at best create a civil liability against him
as regards the respondent-complainant, however, the same in any manner
cannot make him vicariously liable under Section 138 read with Section
141 of Negotiable Instruments Act on account of dishonour of a cheque
having been issued by the Director of the company towards the discharge
of its loan amount due towards the respondent-Bank. The aforesaid view
TEJWINDER SINGH
2023.04.29 17:30
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2023:PHHC:061479
has even been derived from the law laid down by Hon'ble the Supreme
Court in "Pooja Ravinder Devidasani's" case (supra).
7. In view of the aforesaid discussion, the present petition is
allowed, the complaint bearing No. COMP/10342/17 filed under Section
138 of Negotiable Instruments Act as well as the summoning order
dated 26.07.2019 passed by Court of Ld. JMIC First Class, Ludhiana
are hereby quashed qua the petitioners.
27.04.2023 (HARKESH MANUJA)
tejwinder JUDGE
Whether speaking/reasoned Yes/No
Whether Reportable Yes/No
TEJWINDER SINGH
2023.04.29 17:30
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integrity of this document
