Criminal liability under Section 138 of the Negotiable Instruments Act is personal to the drawer and does not extend after the drawer's death, preventing prosecution of non-signatories.

JUDGMENT :

UDAY KUMAR, J.

1. INTRODUCTION

1.1. This revisional application, preferred under Section 482 read with Section 401 of the Code of Criminal Procedure, 1973, is directed against the proceedings of C.R. Case No. 365 of 2022 (TR Case No. 410 of 2022) pending before the Learned Judicial Magistrate, 1st Class, 2nd Court, Berhampore, Murshidabad.

The petitioner primarily assails the order dated August 4, 2023, whereby the Learned Magistrate rejected a prayer for discharge, effectively compelling the petitioner, a non- signatory to the cheque, to stand trial for a criminal offense involving a negotiable instrument allegedly committed by a deceased drawer.

1.2. The impugned proceedings are challenged primarily on the grounds that the Learned Magistrate failed to appreciate the fundamental distinction between the civil liability of an estate and the personal nature of criminal liability. The petitioner contended that the continuation of this prosecution constitutes a manifest abuse of the process of law, as the statutory requirements of Section 138 of the Negotiable Instruments Act, 1881, remain wholly unfulfilled in relation to him.

2. BACKGROUND FACTS

2.1. The genesis of the present dispute is found in a purported business transaction between the Opposite Party (Complainant) and one Tapan Kumar Dey (since deceased), the elder brother of the petitioner. It is alleged that the deceased, in his capacity as a Ration Dealer, secured a loan of Rs. 27,00,000/- from the Opposite Party for business exigencies.

2.2. In purported discharge of the said liability, Tapan Kumar Dey issued an account payee cheque (No. 519344) dated February 1, 2022, drawn on the State Bank of India, Gram Salika Branch. However, the legal trajectory of this instrument was irrevocably altered when the drawer expired on February 3, 2022, as evidenced by the death certificate produced before the Trial Court (Annexure P-1).

2.3. Notwithstanding the drawer's demise, which by operation of law revoked the bank's mandate to pay, the Opposite Party presented the cheque for encashment on April 6, 2022. Upon its dishonour with the endorsement "Funds Insufficient," the Complainant attempted to transmute a civil debt into a heritable criminal liability by serving a statutory demand notice dated April 13, 2022, upon the petitioner, Gautam Dey, on the premise of him being a "Legal Representative" and "Business Associate."

2.4. Following the petitioner's refusal to satisfy the demand on the grounds of total lack of personal culpability, the Opposite Party instituted the impugned complaint under Section 138 of the Negotiable Instruments Act. The petitioner subsequently moved for discharge, asserting that since the cheque was neither signed by him nor drawn on an account maintained by him, the prosecution was void ab initio and an egregious abuse of the process of law.

2.5. By the impugned order dated August 4, 2023, the Learned Magistrate rejected the petitioner’s plea. The Learned Court observed that in a summons-triable case, there is no specific procedural provision for "discharge" and further held that the applicability of Section 29 of the N.I. Act regarding the liability of a legal representative was a "matter of trial."

2.6. Aggrieved by this refusal to drop a fundamentally flawed prosecution, the petitioner has moved this Court for quashing on the grounds that he is a non-signatory, the criminal liability is non inheritable, and the requisite "concatenation of acts" necessary to complete an offense under Section 138 cannot, in law or facts, be attributed to him.

3. QUESTIONS FOR DETERMINATION

3.1. Having set out the background facts that precipitated this revisional application, it is now imperative to crystallize the legal controversy. The primary grievance of the petitioner is that he has been compelled to stand trial for a criminal offense that is, by its very nature, fundamentally incapable of being committed by him.

3.2. To effectively adjudicate upon the legality of the impu