IMPORTANT POINT
Section 138 of Negotiable Instruments Act Contemplates of punishment only against the drawer of the cheque but not others.

T. Ranga Rao, J. - This petition is filed under Section 482, Cr. P.C. to quash the proceedings in C.C. No. 436 of 1995 on the file of III Addl. Judl. First Class Magistrate, Rajahmundry.

2. The first respondent filed a private complaint against the petitioner/A-3 and others alleging that the Accused 1 and 2 constitute a Joint Hindu Family and A-1 was the Manager of the Joint Hindu Family and the petitioner herein is the wife of A-1. It is alleged that the Accused 1 to 3 approached the complainant and obtained financial accommodation of' Rs. 1,50.000/- and purchased a car bearing No. AlK-969 in the name of the petitioner / A-3 and A-1 issued post dated cheque on 1-2-1995 for Rs. 2,56,300/and the cheque was presented and it was returned dishonoured on 8-2-1995. Then he issued a notice on 12-2-1995 to A-1 to A-3 demanding to pay the amount within fifteen days and the accused received the notice on 14-2-1995 and failed to pay the amount and liable for punishment under Section 138 of the Act.

3. The learned Magistrate originally dismissed the complaint without recording the sworn statement against A-2 and A-3. Against the said orders the complainant filed a revision before the Sessions Judge in Crl. Rev. Petition No. 65 of 1995 and the said revision was allowed directing the Magistrate to record the sworn statement and then pass appropriate orders.

4. The learned Magistrate after recording sworn statement took the case on file under Sections 138 and 142 of the Nagotiable Instruments Act, Now the petitioner who is A-3 filed this petition to quash the proceedings.

5. The learned Counsel for the petitioner submitted that the petitioner has not issued the cheque and admittedly the cheque was issued by her husband A-1 and hence, the prosecution against the petitioner is not maintainable under Section 138 of the Negotiable Instruments Act. She further submitted that the offence contemplated under Section 138 of the Act is only against drawer of the cheque alone, but not others.

6. But the respondent Counsel submitted that A-3 is wife of A-1, who issued the cheque and the car was purchased in her name after obtaining the loan from the complainant and the cheque was issued to discharge the said liability and hence, the prosecution is maintainable.

7. It is useful to extract Section 138 of the Negotiable Instruments Act.

……..Where any cheque drawn by a person on an account maintained by him with a banker for payment from out of that account for the discharge in while 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 the bank such person shall be deemed to have committed an offence and shall without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may extend to one year or with fine which may extend to twice the amount of the cheque or with both;

Provided that nothing contained in this section shall apply unless;

(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn on within the period of its validity, whichever is earlier;

(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque within fifteen days of the receipt of information by him from the bank regard the return of the cheque as unpaid and

(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice.

"Explanation: - For the purpose of this section, 'Debt or other liability means a legally enforceable debt or other liability."

Therefore, it is to be seen from the perusal of