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Delhi High Court
Mahmood Ali Khan, J.
Pratap Singh Yadav & Anr. —Petitioners
versus
Atal Behari Pandey —Respondent
Crl. R. No. 481 of 2002
Decided on 5-9-2002
Counsel for the parties:
For the Petitioners:Mr. Jitender Dewan, Advocate.
For the Respondent: Mr. Pawan Sharma, APP.
Important Point
Where cheque was issued by son for discharge of loan liability of his father only son, drawer of cheque could be prosecuted on dishonour of cheque and father could not be prosecuted with son.
Headnote:(i) Negotiable Instruments Act, 1881 — Section 138 — Dishonour of cheque — Prosecution — Cheque iss-ued by petitioner No. 2 son for discharge of loan liability of peti-tioner No. 1 his father — Whether petitioner No. 1 could be prosecuted for offence with petitioner No. 2? No.
Held: In the instant case, petitioner No. 1 has not drawn any cheque in favour of the respondent. It is petitioner No. 2 who had drawn the cheque for Rs. 1,05,000/- at his own bank account for discharging the liability, payment of debt of his father, petitioner No. 1 herein. The offence within the purview of Section 138 is committed by petitioner No. 2 whose cheque was bounced by the bank on which it was drawn for insufficiency of funds in the account of petitioner No. 2 (to be precise closure of account) and his subsequent failure to make the payment. It is a criminal offence. Only petitioner No. 2 can be said to have committed the offence covered by Section 138. How will petitioner No. 1 be guilty of an offence under Section 138 of the Act has not been explained. He cannot have vicari-ous liability for offence by implication or otherwise as certain other persons have by application of Section 141 of the Act. There is no other provision under the Act or under the ordinary criminal law under which petitioner No. 1 could be held guilty of an offence which has been committed by petitioner No. 2 under Section 138 of the Act. Therefore, there is gross miscarriage of justice when the trial Court took cognizance of the offence under Section 138 against petitioner No. 1 and summoned him for standing trial alongwith petitioner No. 2 and issued notice for offence under Section 138 for trial of petitioner No. 1. To that extent, the notice under Section 251, Cr.P.C. issued by the Trial Court is unsustainable in law and certainly has resulted in miscarriage of justice which warrants interference by this Court. (Para 8)
(ii) Negotiable Instruments Act, 1881 — Section 138 — Criminal Pro-cedure Code, 1973 — Section 177 — Dishonour of cheque — Territorial jurisdiction of Court to try complaint — Place where payment is to be made is relevant for determining jurisdiction — Cheque was issued in Bangalore towards repayment of loan which was given in Bangalore — Cheque was drawn in Bank in Bangalore — Respondent complain-ant presented cheque in Delhi and on dishonour of cheque issued notice from Delhi — Courts at Delhi had jurisdiction to entertain complaint. (Paras 9 & 14)
Result: Revision allowed partly.
Mahmood Ali Khan, J.— This criminal revision petition under Section 397, Cr.P.C. is directed against an order of an Additional Sessions Judge dated 7-5-2002 by which he has served notice under Section 251, Cr.P.C. for the trial of the petitioners for offence under Section 138 of Negotiable Instruments Act (the Act).
2. The relevant facts for appre-ciating the controversy on merit are that the petitioners are father and son respectively. They are residents of Bangalore. Petitioner No. 1, who was carrying on business there, had taken a friendly loan of Rs. 1,50,000/- from the respondent. Respondent was also residing in Bangalore and was in employment there. Petitioner No. 1 issued a cheque for re-payment of the loan amount. The cheque was dishono-ured on presentation which led to the filing of a criminal complaint by the respondent at Bangalore for the prose-cution of petitioner No. 1 under Section 138 of the Act. However, the matter was compromised between the parties. Petitioner No. 1 paid a sum of Rs. 45,000/- to the respondent and the petitioner No. 1 also gave a cheque drawn by his son, the petitioner No. 2 for Rs. 1,05,000/- at Bangalore drawn on a Bangalore Bank in favour of the respondent. In the meantime, the respondent shifted his residence to Delhi. He presented the cheque issued by petitioner No. 2 for payment but the cheque was dishonoured for closure of the account at Bangalore and its intimation was received by the respondent at Delhi. In terms of Section 138 of the Act the respondent issued a demand notice to the petitioners. It was also not complied with and the amount claimed was not paid. Consequently, the petitioner filed the instant criminal complaint for the prosecution of both the petitioners for offence under Section 138 of Negotiable Instruments Act, which at present is pending in the Court of Additional Sessions Judge at Delhi. At the time of serving of notice under Section 251, Cr.P.C. the Trial Court brushed aside the contention of the petitioners that no part of cause of action had arisen at Delhi, therefore, Delhi Court has no territorial juris-diction to entertain the complaint and take cognizance of the offence and further that petitioner No. 1 is also not the drawer of the cheque, therefore, no offence can be said to have been committed by him under Section 138. The Additional Sessions Judge has ser-ved notice on both the petitioners and proceeded against them for trial for offence under Section 138 of the Act. The petitioners are aggrieved and have filed this petition.
3. The contention of the Counsel for the petitioners is two fold. Firstly, the cheque was drawn by petitioner No. 2 on his own bank account so petitioner No. 1 cannot be said to have committed any offence within the purview of Section 138 of the Act. Therefore, taking of cognizance of the offence under Section 138 of the Act and summoning of the petitioner No. 1 to stand trial is illegal and it has resulted in miscarriage of justice. His second contention is that both the parties had resided at Bangal-ore where the loan transaction had taken place, the cheque was issued in favour of the respondent by petitioner No. 2 drawn at his bank which is situa-ted in Bangalore and that the cheque was payable at Bangalore, it was dishonoured at Bangalore, therefore, no part of cause of action could be said to have arisen in Delhi to give jurisdiction to a Delhi Court to entertain and try the criminal complaint.
4. Counsel for the respondent, conversely, has argued that the original loan transaction had taken place between the respondent and petitioner No. 1 and that during the pendency of a criminal complaint under Section 138 of the Act against petitioner No. 1 the matter was compromised. Petitioner
No. 1 had paid a sum of Rs. 45,000 to the respondent and for the balance amount of Rs. 1,05,000/- petitioner No. 2 had issued the cheque. According to him, since the original transaction had taken place with petitioner No. 1 and the
