Judgment:
Shiv Narayan Dhingra, J.
1. This petition under Section 482, Code of Criminal Procedure has been made by the petitioner for quashing of criminal proceedings qua the petitioner in Complaint Case No. 976/1/2005 titled 'Praveen Kumar Jain v. R.D. Sharma and Ors.,' pending before the Court of Metropolitan Magistrate. It is submitted by the petitioner that the case in question was filed by the respondent on the basis of dishonour of a cheque dated 2nd August, 2004 for a sum of Rs. 1 lac. The cheque was issued by Shri Ram Dev Sharma, respondent No. 2 in the petition, in favor of the complainant i.e. respondent No. 1. It is submitted that neither in the notice nor in the complaint, it is pleaded by the complainant that the petitioner was the drawer of the cheque in question or the cheque was issued by the consent and knowledge of the petitioner, who was working as joint director of the institute.
2. Learned Counsel for the complainant submitted that initially a coaching centre in the name of M/s. PMT Oasis Career Edge was being run by the accused persons as a proprietorship firm and was later on converted into a partnership firm and then into a company. The entire liability and assets of the proprietorship firm, merged into the partnership firm and then into the company. The respondent No. 4 i.e. petitioner was the joint director of the company. He was the one who contacted the complainant for loan and was responsible for the business of the company.
3. A perusal of the complaint would show that complainant has not mentioned as to when the proprietorship firm was converted into a partnership firm and when it got converted into a company. Rather in the complaint, it is stated that the coaching business was being run by the accused Nos. 1 to 4 and accused Nos. 1 and 4 were the sole proprietors/partners/joint directors and were in charge and were responsible for the conduct of the coaching business. Regarding issuance of cheque, it was stated that the cheque in question was issued by Ram Dev Sharma in consultation with other partners. It is not stated if the cheque was issued from the account of proprietorship concern or partnership concern or company. Nor it is stated who were the persons responsible for business of the firm or company when cheque was issued or got dishonoured. It is settled law that only drawer of the cheque can be prosecuted under Section 138 of the Negotiable Instruments Act on the cheque getting dishonoured. Since the petitioner in question was neither the drawer of the cheque nor it is alleged that he was partner or proprietor of firm when cheque got dishonoured or he was the person responsible for non-payment of cheque amount, no offence under Section 138 of Negotiable Instruments Act can be made out against the petitioner.
4. In view of my foregoing discussion, the proceedings as against the petitioner, are liable to be quashed and are hereby quashed in Complaint Case No. 976/1/2005 titled 'Praveen Kumar Jain v. R.D. Sharma and Ors.