A person cannot be held liable under Section 138 of the N.I. Act if they are not the drawer of the cheque.

JUDGMENT :

ANIL KUMAR CHOUDHARY, J.

1. Heard the parties.

2. Though notice has validly been served upon the opposite party No.2 yet no one turns up on behalf of the opposite party No.2 in spite of repeated calls.

3. This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, 1973 with a prayer to quash the order dated 04.07.2017 passed by the learned Judicial Magistrate, Dhanbad in connection with C.P. Case No.506 of 2017 by which cognizance has been taken against the petitioner under Section 138 of the N.I. Act.

4. At the outset, learned counsel for the petitioners submits that the petitioners do not press the instant Cr.M.P. in respect of the petitioner No.1 namely G. V. Narayan.

5. Accordingly, this Cr.M.P. stands rejected as not pressed in respect of the petitioner No.1 namely G.V. Narayan.

6. So far as the petitioner No.2 namely Radhakrishnan is concerned, learned counsel for the petitioners submits that admittedly the petitioner No.2 namely Radhakrishnan is not the drawer of the cheques concerned and since Section 138 of the N.I. Act provides punishment for a person who draws the cheque on an account maintained by him, with a banker for payment of any amount of money, to another person from out of that account, for the discharge, of any debt or other liability, when such cheque is returned by the bank unpaid and if such person fails to pay the amount within 15 days of receipt of the demand for payment of the cheque amount and in this case admittedly all the five cheques which were dishonoured, were issued by the petitioner No.1 namely G. V. Narayan and the petitioner No.2 namely Radhakrishnan is not the drawer of the cheques and there is no vicarious liability provided for, so far as the offence punishable under Section 138 of the N.I. Act is concerned, hence, the learned Magistrate has committed an error by directing to issue summons against the petitioner No.2 namely Radhakrishnan who is the accused No.2 of Complaint Case No.506 of 2017. Hence, it is submitted that the order dated 04.07.2017 be quashed and set aside so far as the petitioner No.2 namely Radhakrishnan is concerned.

7. Learned Addl.P.P. appearing for the State on the other hand opposes the prayer of the petitioner made in the instant Cr.M.P. and submits that since Shri Narayani Steel Company belongs to the petitioner No.2 to whom the coke was supplied by the complainant. Hence, even though the petitioner No.2 namely Radhakrishnan is not the drawer of the cheque still he is squarely liable for the offence punishable under Section 138 of N.I. Act. Hence, it is submitted that this Cr.M.P., being without any merit, be dismissed.

8. Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that the plain reading of Section 138 of the N.I. Act which reads as under:-

“138. Dishonour of cheque for insufficiency, etc., of funds in the account.—Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to two years, or with fine which may extend to twice the amount of the cheque, or with both:

Provided that nothing contained in this section shall apply unless—

(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity,