Gyanendra Jaiswal vs. State Of U.P. Thru. Prin. Secy. Home Lko. And Another

Held

The Court held that the applicant is neither the owner/proprietor of the firm M/s Durga Krishi Yanta nor the signatory/drawer of the cheque in issue. This finding was based on the undisputed facts presented by the applicant, supported by the GST registration certificate and the cheque copy, and the failure of the opposite party to specifically deny these averments in their counter-affidavit. The Court considered the observations made by the Hon'ble Apex Court in the judgments of Sunita Palita and others vs. M/s Panchami Stone Quarry and Mrs. Aparna A. Shah vs. M/s Sheth Developers Pvt. Ltd and another. Based on these undisputed facts and the Apex Court's precedents, the Court found that indulgence in the matter was required. The ratio decidendi is that a person cannot be prosecuted under Section 138 of the NI Act if they are neither the drawer of the cheque nor the proprietor of the firm in whose name the cheque was issued, especially when documentary evidence supports this. The Court allowed the application and quashed the summoning order, the bailable warrant order, and the entire proceedings of Complaint Case No. 122 of 2018.

Facts

The applicant, Gyanendra Jaiswal, filed an application under Section 482 CrPC seeking to quash a summoning order dated 05.10.2018, a bailable warrant order dated 08.06.2022, and the entire proceedings of Complaint Case No. 122 of 2018. This complaint was filed under Section 138 of the Negotiable Instruments Act (NI Act) by M/s Rajput Engineering Works against Durga Krishi Yanta and Gyanendra Jaiswal. The applicant contended that he is neither the proprietor of Durga Krishi Yanta nor the signatory of the cheque in question. He provided a GST registration certificate showing Shashwat Jaiswal as the proprietor and a copy of the cheque indicating Shashwat Jaiswal as the drawer. The opposite party, M/s Rajput Engineering Works, filed a counter-affidavit, which did not specifically deny these averments. Instead, it alleged that the applicant is the father of Shashwat Jaiswal and committed forgery.

Key Issues

1. Whether the summoning order and the entire proceedings of Complaint Case No. 122 of 2018 under Section 138 of the NI Act are liable to be quashed on the ground that the applicant is neither the proprietor of the firm M/s Durga Krishi Yanta nor the signatory/drawer of the cheque in question? (Question of law and fact, turning on Section 138 of the NI Act). Petitioner's Arguments: The applicant argued that the court below erred in issuing summons without considering that he is not the proprietor of M/s Durga Krishi Yanta and did not issue the cheque. He relied on the GST registration certificate (Annexure 4) showing Shashwat Jaiswal as the proprietor and the cheque copy (Annexure 5) indicating Shashwat Jaiswal as the drawer. He cited the Apex Court judgments in Sunita Palita and M/s Panchami Stone Quarry and Mrs. Aparna A. Shah vs. M/s Sheth Developers Pvt. Ltd and another. Revenue/State's Arguments: The opposite party (M/s Rajput Engineering Works) argued that the applicant is the father of Shashwat Jaiswal, who used to conduct business as the proprietor of M/s Durga Krishi Yanta. They alleged that the applicant committed forgery and usurped the cheque amount. They claimed the petitioner is liable to be punished and that the cheque was given by the petitioner.