A person who is not the drawer of a cheque cannot be made an accused under Section 138 of the Negotiable Instrument Act.

1. This Criminal Original Petition has been filed by the petitioner/A2 in C.C.No.8 of 2010 pending on the file of the District Munsif cum Judicial Magistrate Court, Bodinayakanur, Theni District, to quash the said proceedings.

2. Heard Mr. A.Jeyarhuthran, learned counsel for the petitioner and Mr.P.Senguttarasan, learned counsel appearing for the respondent.

3. The learned counsel appearing for the petitioner would submit in his argument that the respondent as a complainant has filed a private complaint on 23.12.2009 against the petitioner and her husband for the offence under Section 120(B) read with 420 I.P.C. and 120(B) I.P.C. read with 138 of the Negotiable Instrument Act, before the District Munsif cum Judicial Magistrate, Bodinayackanur and in the said complaint, the petitioner was ranked as 2nd accused. He would further submit that the cheque issued by the petitioner was not drawn and handed over by the petitioner to the respondent and there was no commission of offence by the petitioner as alleged by the respondent and therefore, there is no question of prosecution against the petitioner in the complaint given by the petitioner.

4. He would further submit that the petitioner had no intention to cheat the respondent nor any intention to conspire to commit the offence of cheating by issuing a cheque for deceiving the respondent. He would further submit that the petitioner is working as a Professor in a reputed college and the complaint has been filed clubbing the petitioner also as 2nd respondent in order to harass the petitioner. He would also submit that the complaint would not be sustainable on the face of itself and the lower Court has originally returned the complaint as not maintainable against the 2nd respondent, but, it has accepted the representation submitted without any explanation for curing the said defect and hence the cognizance taken by the lower Court against the petitioner is not sustainable and therefore, the complaint filed by the petitioner may be quashed and accordingly, this petition may be allowed.

5. The learned counsel appearing for the respondent would submit in his argument that the petitioner is the wife of the 1st accused and both had borrowed a sum of Rs.3,75,000/-and agreed to pay 12% interest per annum to the said loan and the 1st accused had executed a promissory note in which the petitioner and yet another person viz., Senthilkumar signed as witnesses. He would further submit that the husband of the petitioner viz., the 1st accused issued a cheque for a sum of Rs.3,75,000/- in favour of the respondent with an idea to cheat the respondent/complainant along with the conspiracy had with the petitioner and accordingly, the cheque issued by the 1st accused was dishonoured by the bank for want of funds and therefore, the petitioner, who advised and conspired for such commission of offence is also liable for committing the offence. He would further submit that the respondent has advanced money only for the need of the petitioner/2nd accused and therefore, the complaint filed against the petitioner, as one of the accused is maintainable and the non criminality has to be considered only at the time of pronouncing the judgment after a full fledged trial with the help of evidence and therefore, he would request the Court to dismiss the petition.

6. I have given anxious thoughts to the arguments advanced on either side.

7. The respondent is the complainant before the lower Court, who filed a private complaint under Section 200 Cr.P.C. for the offence under Section 120(B) read with 420 I.P.C and 120(B) I.P.C. read with 138 of the Negotiable Instrument Act against the husband of the petitioner as A1 and the petitioner as A2. The statutory notice was also issued by the petitioner for the offence under Section 138 of the Negotiable Instrument Act. It is an admitted fact that as per the respondent’s case, a sum of Rs.3,75,000/- was borrowed from the respondent/complainant and the 1st accu