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

G.K. Ilanthiraiyan, J.

This quash petition is filed to quash the criminal proceedings in C.C.No.35 of 2014 on the file of the Judicial Magistrate, Valliyoor, arising out of Section 138 of Negotiable Instrument Act, filed by the respondent/complainant.

2. The case of the complainant is that on 06.08.2013, the petitioner approached the respondent to avail a loan to the tune of Rs. 3 lakhs and promised to repay the said loan, within a period of three months with interest at the rate of 1%. On 11.08.2013, the respondent lend loan to the petitioner to the tune of Rs. 3 lakhs and towards repayment of the same, on 11.11.2013, the petitioner issued a cheque bearing No.635789 drawn on Axis Bank, Ashok Nagar, Chennai. On instructions, the respondent, on 11.11.2013, deposited the said cheque for collection and it was returned dishonoured for the reason that insufficient funds. Therefore, the respondent issued statutory notice on 10.12.2013 and after receipt of the same, the petitioner neither paid the cheque amount nor issue reply notice to the respondent. Hence, the complaint.

3. The learned counsel appearing for the petitioner would raise the following grounds to quash the criminal proceedings against the petitioner herein :

The cheque in question in the criminal proceedings issued by P.David Rajan that too from the current account stands in the same of said P.David Rajan. The petitioner never issued any cheque and never be the signatory to the alleged cheque issued by the petitioner. Further, the account from which, the cheque issued is also not belong to the petitioner herein. Therefore, the learned Judicial Magistrate ought not to have taken cognizance as against the petitioner herein. It is seen from the naked eye that the alleged cheque is signed by one P.David Rajan and as such, the learned Judicial Magistrate, mechanically has taken cognizance for the offence under Section 138 of the Negotiable Instrument Act as against the petitioner. The alleged cheque signed by one P.David Rajan in the capacity of Proprietor of CANNAN CITY, whereas, the loan allegedly borrowed by the petitioner and on her individual capacity. Therefore, at any point, the complainant is liable to be quashed and it is not maintainable as against the petitioner. Thus, he prayed for quashment of the criminal proceedings against the petitioner herein.

4. Per contra, the learned counsel appearing for the respondent would submit that the petitioner borrowed a sum of Rs. 3 lakhs and she only issued the cheque to the tune of Rs. 3 lakhs towards repayment of the loan borrowed by her. The respondent did not know about the signatory of the cheque and the account belongs to whom. The petitioner issued her husband's cheque and also signed by him belongs to the current account of proprietorship concern CANNAN CITY. Deliberately, with dishonest intention to cheat the respondent, the cheque has been issued. Therefore, the offence under Section 138 of the Negotiable Instrument Act is very much attracted as against the petitioner and as such, he sought for dismissal of the quash petition.

5. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent.

6. Admittedly, the cheque has been issued from the current account of CANNAN CITY signed by one P.David Rajan as its Proprietor/authorised signatory. The petitioner/accused is not the signatory to the said cheque issued to the tune of Rs. 3 lakhs dated 11.11.2013 drawn on Axis Bank, Ashok Nagar Branch, Chennai. In this regard, the learned counsel appearing for the petitioner relied upon the judgment Aparna A. Shah V. Sheth Developers (P) Ltd, (2013) 8 SCC 71., wherein, the Apex Court has held as follows :

"(22) In the light of the above discussion, we hold that under Section 138 of the Act, it is only the drawer of the cheque who can be prosecuted. In the case on hand, admittedly, the appellant is not a drawer of the cheque and she has not signed the same. A copy of the cheque was br