Only the drawer of a cheque can be held criminally liable under Section 138 of the Negotiable Instruments Act, and mere ownership of property does not establish liability.

JUDGMENT :

Chittaranjan Dash, J.

1. By means of this application, the Petitioner seeks indulgence of this Court, for quashing/setting aside the order dated 03.08.2017 passed by the learned S.D.J.M., Sonepur in ICC Case No.2 of 2017 under Annexure-1.

2. The background facts of the case are that the Petitioner, Smt. Prafulla Mishra, was arrayed as one of the co-accused in I.C.C. Case No. 2 of 2017 pending before the learned S.D.J.M., Sonepur, for alleged commission of an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 . The complainant, Laba Mallick (Opposite Party No. 2), alleged that accused no.1, son of the Petitioner, purchased a piece of land for a consideration of Rs.15,40,000/- in the name of accused No. 2 (the Petitioner). Of the total amount, Rs. 6,40,000/- was paid in cash, and the remaining Rs. 9,00,000/- was paid by two post-dated cheques drawn on the account of accused No. 1. However, upon presentation to the bank, both cheques were dishonoured due to insufficient funds, which was communicated to the complainant on 04.01.2017. Despite receiving a legal demand notice on 28.01.2017 asking them to pay the dishonoured amounts within the statutory period, the accused failed to do so. Consequently, the complainant instituted the present proceedings before the learned S.D.J.M., Sonepur, who took cognizance of the offence under Section 138 of the N.I. Act against the Petitioner as well. Being aggrieved by the order of cognizance, the Petitioner has approached this Court by filing the present CRLMC under Section 482 of the Cr.P.C. for quashing of the entire criminal proceedings on the ground that she is neither the drawer nor signatory of the dishonoured cheques and cannot be held vicariously liable under the law.

3. Mr. Dwibedi, appearing on behalf of the Petitioner submits that she is only the mother of the co-accused and was not a party to the underlying transaction nor to the dishonoured instruments. The record demonstrates that the post-dated cheques were drawn and issued by accused No. 1, and the Petitioner neither signed the cheques nor maintained the account upon which they were drawn. Mr. Dwibedi asserts that the Petitioner cannot be fastened with criminal liability under Section 138 of the Negotiable Instruments Act, 1881 , which requires that the person who “draws” the cheque is liable upon its dishonour. He further states that vicarious liability under the N.I. Act is statutorily attracted only in cases involving companies or juridical persons, not in situations like the present one where the Petitioner is merely a family member. Mere registration of the property in her name cannot imply criminal intent or liability under the N.I. Act. Mr. Dwibedi submits that the complaint and the cognizance order lack any specific allegations against the Petitioner, and the Magistrate took cognizance mechanically, without appreciating the absence of the Petitioner’s role as a drawer or signatory. The learned counsel presses that allowing the proceedings to continue against the Petitioner would cause undue harassment and defeat the ends of justice and prays to quash the order of cognizance dated 03.08.2017 and all proceedings against the Petitioner.

4. Mr. Mishra, learned counsel for the Opposite Party, argues that the criminal proceedings initiated under Section 138 N.I. Act are fully justified as the Petitioner was the named purchaser and direct beneficiary of the transaction; thus, her role cannot be overlooked. He further argues that the dishonoured cheques were issued to satisfy the balance sale consideration for a property registered in her name, making her an active participant in the transaction. Mr. Mishra contends that the plea that she is not a signatory