V. Jagannathan, J : The petitioner who is accused No.2 and being the mother of accused No.1 is before this Court seeking quashing of the proceedings against her which is pending in C.C,No.30822/09 on the file of the 13th Addl. CMM, Bangalore, and issuance of summons to the petitioner has given raise to this petition under Section 482 of Cr.P.C.

2. Brief facts which have led to the summons being issued to the petitioner in respect of an offence punishable under Section 138 of N I. Act, 1881, are that, the respondent-complainant approached the Trial Court in a private complaint under Section 200 of Cr.P.C., alleging that the Complainant being the tenant in the Premises owned by the petitioner vacated the premises and sought for refund of the deposit amount. The petitioner's son who is accused no.1 issued two cheques to the respondent for a sum of Rs. 2,60,000/- each and the said cheques on being presented by the complainant were returned with an endorsement 'insufficient funds'. The complainant issued a notice to both the accused and sought for payment of Rs. 5,20,000/- and though said notice was returned with an endorsement 'not claimed', thereafter, the complainant resorted to filing of the private complaint under Section 200 of Cr.P.C. for an offence punishable under Section 138 of N.I. Act.

3. Learned Magistrate of the Trial Court recorded the sworn statement of the representative of the complainant's company and based on the said sworn statement and also on perusal of the complaint, the Court directed issuance of summons to both the accused.

4. The petitioner who is accused No.2 contends in this petition that the cheques in question were issued by her son and not by the petitioner and therefore, by virtue of provisions contained in Section 138 of N.I. Act, it is only the 1st accused who had issued the cheques can be prosecuted and not this petitioner.

5. Learned Counsel for the petitioner in support of the above submission, placed reliance on the Apex Court decision reported in 2010 AIR sew 4616 to contend that the proceedings in respect of an offence punishable under Section 138 of N.I. Act is tenable only against the drawer of the cheque and as it is not in dispute that two cheques were issued by accused No.1 and not by the petitioner, the Trial Court could not have issued summouns to the petitioner:

6. On the other hand, submission of the learned Counsel for the respondent-complainant is that while it is an admitted fact that two cheques in question were issued by accused No.1 and not by the petitioner I yet in order to establish the legal relationship of the landlord and the tenant, it was necessary on the part of the complainant to make the petitioner also as 'one of the accused, because the cheques in question were issued by the 1st accused only as per the directions of the petitioner. Further more, if the petitioner is not made as a party, then that itself may come in the way of the complainant succeeding before the Trial Court. Under these circumstances the petition therefore be dismissed.

7. Having thus heard both sides, the only point for consideration is as, tot whether the Trial Court was justified in issuing summons to the petitioner in respect of an offence punishable under Section 138 of N.I.Act when the petitioner was not the drawer of the two cheques.

8. Before referring to the position in law as has been laid down by the Apex Court, it is necessary to extract the provisions of Section 138 of the N.I.Act and the said provision is as follows:-

138. Dishonour of cheque far 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 liabllity, 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