ALLAHABAD HIGH COURT
Vinod Prasad, J.
Ganesh Singh —Applicant
versus
State of U.P. & Ors. —Opp. Parties
Criminal Miscellaneous Application No.6803 of 2003 Connected with Criminal Miscellaneous Application No.7318 of 2003
Decided on 26.5.2014

IMPORTANT POINT
Person who had filed in the cheque but cheque was signed and drawn by other person, could not be prosecuted 138 of N.I. Act though such person was closely related to person who had drawn the cheque.

Headnote:Negotiable Instruments Act, 1881 — Section 138 — Prosecution for dishonour of cheque — Petitioners-accused ‘G’ and his sister-in-law smt “M” members of HUF, issued cheque in question towards out-standing dues for purchase of Cement from complainant — Petition for quashing complaint and proceedings — Cheque was signed and drawn by smt “M” and had been filed by “G” — Petitioner “G” being not the drawer of cheque his prosecution was unwarranted under the Act — Statutory notice u/s 138(b) of the Act had been issued by complainant to “G” after dishonour of cheque — No notice was issued to smt “M” — In absence of statutory “G” her prosecution was bad in law — Complaint was premature too when statutory demand notice had been given on 15.2.2002 and complaint was filed on 28.2.2002 — Complaint and proceedings were liable to be quashed.

       Held: In the legal background mentioned herein above when the facts of the present Applications are vetted minutely, it becomes apparent that so far as Ganesh Singh applicant is concerned, he is not the drawer of the cheque. No criminal liability under the Act, which is a strict liability, therefore, can be fastened on Ganesh Singh as he is not the drawer of the cheque. The drawer of the cheque is Smt.Manju Singh, who is his bhabhi. Merely because Ganesh Singh had filled in the cheque, will not make him liable under section 138 of the Act as the Act does not contemplates any such situation. Learned counsel for the informant was unable to successfully built the argument that such a fact situation will also anoint offence on Ganesh Singh and will bring him with the purview of section 138 of the Act. He reluctantly conceded that so far as Ganesh Singh is concerned, his prosecution under the Act is in competent and cannot be permitted to go on.

       Coming to the case of bhabhi Smt.Manju Singh, another applicant, who is drawer of the cheque, the admitted facts are that no notice of demand u/s.138(b) of the Act was issued to her at any point of time by demanding the payment of the cheque amount. In that eventuality, the sine qua non uneschewable ingredient for disclosing offence under section 138 N.I. Act against Smt.Manju Singh is missing from the complaint. Demand notice statutorily required has been annexed along with 482 Cr.P.C. Application No.6803 of 2003, Ganesh Singh Vs. State of U.P. and others as annexure No.4. A bare perusal of the said notice indicate that only Ganesh Singh was given the notice and not applicant Smt.Manju Singh. Learned counsel for the informant also had to accept that no notice of demand was served on Smt.Manju Singh at any point of time as is ordained under section 138(b) of the Act.

       Another common contention by both the applicants seeking quashing of their prosecution is that complain t was filed prematurely is also well founded and has merit and substance in it. Admittedly, the cheque was issued by Smt.Manju Singh on 31.12.2002 and the statutory demand notice was given on 15.02.2002 in the name of Ganesh Singh. Without completion of statutory period of fifteen days, the complaint was filed on 28.02.2002 and it was registered on the same day and cognizance was taken. In such a view, by a pure common sense, the complaint was filed prior to lapse of statutory period of fifteen days, during which drawer of the cheque could have rectified the committed mistake. That being the situation in the present case the complaint, therefore, is premature and the Magistrate was not entitled to take cognizance of the offence as on the day on which, the complaint was registered and cognizance was taken of the offence u/s.138 of the Act, in fact, no such offence on that date was committed at all.

       Before parting with this decision it would but be appropriate to mention that r the question of complaint being premature has been referred to a three Judge bench of the apex court in Yogendra Pratap Singh (Supra), but the same does not alter the position as other grounds respecting Ganesh Singh being not the drawer of the cheque and another applicant Smt.Rekha Singh was not at all served with any notice u/s.138 (b) still comes to the rescue of the applicants from their aforesaid prosecution. (Paras 9, 10, 11 & 13)

       Result : Petition allowed.