Only the drawer of the cheque can be prosecuted under Section 138 of the Negotiable Instruments Act.

JUDGMENT

Pankaj Bhandari, J. - Petitioner has preferred this Criminal Miscellaneous Petition aggrieved by order dated 29.06.2018 passed by Sessions Judge, Jhunjhunu in Criminal Revision Petition No.77/2018 (CIS 89/2018), whereby Revision Petition filed by the petitioner was dismissed and against the order dated 19.07.2017 passed by Additional Chief Judicial Magistrate, Nawalgarh, Distt. Jhunjhunu in Criminal Case No.100/2017, whereby cognizance has been taken against the petitioner under Section 138 of Negotiable Instruments Act.

2. It is contended by counsel for the petitioner that the cheque in question was given by Raju Kumar. It does not bear his signature and hence he cannot be prosecuted under Section 138 of Negotiable Instruments Act.

3. Counsel for the petitioner has placed reliance on Aparna A. Shah vs. Sheth Developers Private Limited & Anr., (2013) 8 SCC 71 & Shyam Sunder @ Mangat Ram vs. State of Rajasthan through P.P.,2017 3 RCC(Raj) 996 .

4. Counsel for the complainant has opposed the present Criminal Miscellaneous Petition. It is contended that petitioner and the co-accused came to him and took money to purchase granite and marble and in discharge of the debt, the cheque was given.

5. It is contended that petitioner can be prosecuted in view of explanation given in Section 141 of the Act.

6. Counsel for the complainant-respondent has placed State Farm Corpn. Of India Ltd. vs. Nijjer Agro Foods Ltd. & Ors., (2006) AIR SC 679 & S.M.S Pharmaceuticals Ltd. vs. Neeta Bhalla & Anr., (2005) AIR SC 3512 .

7. I have considered the contentions.

8. In "Aparna A. Shah vs. Sheth Developers Private Limited & Anr." (supra) dealing with Section 138 of N.I. Act held that only drawer of the cheque can be prosecuted. The facts of the case before the Supreme Court was that the appellant was a joint account holder. The cheque was signed by the other joint account holder and did not bear the signature of the appellant. The Apex Court held that only drawer of the cheque can be made an accused in proceedings under Section 138 of N.I. Act. Similar view was taken by the Rajasthan High Court in "Shyam Sunder @ Mangat Ram vs. State of Rajasthan through P.P." (supra).

9. The judgment "S.M.S Pharmaceuticals Ltd. vs. Neeta Bhalla & Anr." (supra) cited by the counsel for the respondent pertains to a cheque issued by the Company, it was held by the Apex Court that there has to be an averment in the complaint that at the time the offence was committed, the person accused was in charge of the business of the Company. The Court observed that signatory of cheque, which was dishonoured is clearly responsible for the incriminating act and would be covered under Sub-Section (2) of Section 141 of Negotiable Instruments Act. The judgment cited by the counsel for the complainant-respondent has no applicability to the facts of the case. Petitioner would not fall within the definition of association of persons and cannot be proceeded against as he has not issued the cheque.

10. This Court is of the view that petitioner not being the drawer of the cheque proceedings cannot be continued against him as held in "S.M.S Pharmaceuticals Ltd. vs. Neeta Bhalla & Anr." (supra), "Aparna A. Shah vs. Sheth Developers Private Limited & Anr." (supra) & "Shyam Sunder @ Mangat Ram vs. State of Rajasthan through P.P." (supra).

11. The present Criminal Miscellaneous Petition is accordingly allowed. Proceedings qua the petitioner are quashed.