Only the drawer of the cheque can be made liable for penal action under the provisions of the Negotiable Instrument Act, and strict interpretation is required to be given to penal statutes.

This quash petition is filed to quash the complaint filed for the offence under Sections 138 and 142 of Negotiable Instrument Act against the petitioner and another.

2. The case of the complainant is that both the accused are known to the complainant. On 05.08.2009, both the accused have borrowed jointly a sum of Rs.10,00,000/- on pronote executed by the first accused at the rate of interest 18% per annum. The first accused issued a cheque dated 10.08.2010 to discharge entire part of their liability for a sum of Rs.11,80,000/- bearing No.554837 dated 18.08.2010 in favour of the complainant. The said cheque was presented for collection and it was returned dishonoured with the banker's endorsement “ACCOUNT No.88 - OUR ACCOUNT OF G.SORNAVALLY”. It was informed to the complainant. Therefore, on 20.08.2010, the second accused issued two cheques for a sum of Rs.5,90,000/- each. Both the cheques were presented for collection and the same were also returned for the reason that “INSUFFICIENT FUNDS”. After causing statutory notice, the complainant filed private complaint for the offence under Section 138 of Negotiable Instrument Act before the Judicial Magistrate No.3, Tiruchirappalli.

3. After having taken cognizance for the offence under Sections 138 and 142 of Negotiable Instrument Act against the accused, the learned Judicial Magistrate No.3, Tiruchirappalli issued summons to the accused. On receipt of the summons, the first accused filed this quash petition.

4. The learned counsel for the petitioner/first accused would submit that the offence under Section 138 of Negotiable Instrument Act would not attract against him for the reason that he is not the drawer of the cheque. The cheque and the account is not belonged to him. The alleged cheque is not signed by him and his signature was forged by the respondent/complainant and presented the same. Therefore, the ingredients to attract the offence under Section 138 are not fulfilled by the respondent. Therefore, he prayed to quash the complaint insofar as the petitioner/first accused is concerned.

5. The learned counsel for the respondent would submit that the petitioner issued cheque after knowing very well that the account and the cheque book is belong to the second accused and signed the cheque. Therefore, it amounts to cheating and attract the offence under Section 138 of Negotiable Instrument Act and prayed for dismissal of the quash petition.

6. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent and perused the materials placed before this Court.

7. It is seen from the complaint that the cheque is not belonging to the petitioner and the cheque pertains to the account No.88 and it stands in the name of the second accused. The other cheques issued by the second accused belong to her account. Though the loan jointly borrowed by both the accused, the alleged cheque was not signed by the petitioner and as such, no offence under Section 138 of Negotiable Instrument Act can be said to have been committed by the petitioner. The offence under Section 138 of Negotiable Instrument Act reads as follows:

“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 arrangement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions 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 no