IMPORTANT POINT
Liability of drawer qua drawee stems from signature appended to cheque.

Subrata Talukdar, J.—In this criminal revisional application the petitioner prays for quashing of complaint case no. C/716/11 of 2011 (TR 188/11) under Section 138 of the Negotiable Instruments Act,1881 now pending before the learned Judicial Magistrate, 2nd Court, Alipore, 24 Parganas (South). The petitioner is the accused no. 2 in the said complaint.

2. The brief facts of the caseare as follows:-

a. That the complainant is one Debasish Ghosh who is the absolute owner of premises no. 31, Jatindas Road, Police Station: Lake, Kolkata-700 029;

b. That the accused no.1 is the husband of the petitioner and a business relationship subsisted between the accused no.1 and the complainant. This business relationship also covered the promoting and development of around 10 cottahs property situated at 31, Jatindas Road, Police Station: Lake, Kolkata-700 029;

c. Pursuant to the agreement between the complainant and the accused no.1, Swapan Chatterjee, the complainant paid a sum of Rs. 8,00,000/- to the firm of the accused no.1 and the accused no.2. However, the project did not materialise and in discharge of their alleged liability of Rs. 8,00,000/-, the accused persons issued an account payee cheque no.257161 of the said amount of Rs. 8,00,000/-.

d. The cheque dated 15th June, 2010 drawn on State Bank of India, Ruby Park Branch, 198, Rajdanga Road, Kasba, Kolkata-700 017 returned with the memo dated 22nd November, 2010 with the remarks payment stopped by drawer.

e. Subsequently, the complainant caused to be issued demand notice through his lawyer dated 03rd December, 2010 and the said demand notice returned with the endorsement ‘ not claimed’. Hence, the complaint under Section 138 of the N.I. Act. Sri Gupta, Ld. Counsel appearing on behalf of the petitioner has principally canvassed the following points before this Court. That the learned Magistrate failed to discharge jurisdiction vested in him by law by neglecting to peruse the cheque in dispute as annexed to the petition of complaint. The learned Magistrate further failed to examine the statement made in the petition of complaint as well as in the evidence-in-chief of the complainant. According to Sri Gupta a bare perusal the complaint will show that the cheque has been used by only person and process could not have been issued against two persons viz; Swapan Chatterjee, the accused no.1 and Madhumita Chatterjee, accused no.2 who is the present petitioner.

3. Sri Gupta argues that it is settled law that the liability under Section 138 of the N.I. Act shall lie against the drawer of cheque. Even the learned Magistrate is required to examine the identity the drawer of the cheque in exercise of powers under Section 202 of the Criminal Procedure Code. The learned Magistrate was within his competence to call for a report from the concerned bank. Such report would have conclusively settled the identity of the drawer of the cheque.

4. Sri Gupta also submits that issuance of process against the accused no. 2 and the present petitioner who claims not to be the drawer of the cheque shall amount to an abuse of the process of law. Mechanical issuance of process against both the accused persons show non-application of judicial mind and on such score the order taking cognizance is to be quashed by the Hon’ble Court.

5. Sri Gupta further draws the attention of this Court to Section 7 of the Negotiable Instruments Act. Section 7 defines ‘drawer’. Only the ‘drawer’ is liable to be prosecuted under the N.I. Act. In the facts of this case although the account is a joint account but only the accused no.1, husband, is the drawer of the cheque. The proceedings can only lie against the husband and not against the present petitioner-accused no.2 who is in no way the drawer of the cheque.

6. To buttress his submission Sri Gupta relies on a supplementary-affidavit filed by him with copy to the opposite party annexing certificate of the concerned bank viz., State Bank of India, Ruby Park Bran