JUDGMENT

1. With the consent of learned counsel for the parties the matter is finally heard.

2. This petition under section 482 of the Code of Criminal Procedure, 1973 (for short 'the Code') has been preferred by the petitioner K. V. Vijaywargiya, who is accused No.2 before the trial Court for quashment of Criminal Case No.4390/2018 pending before the Judicial Magistrate, First Class, District Indore against him.

3. The respondent/complainant has filed a complaint under section 200 of the Code before the trial Court for prosecuting and punishing the accused/petitioner and one Mr. Ajay Sharma for offence punishable under section 138 of the Negotiable Instrument Act, 1881 (for short “the Act, 1881”).

4. As per the complainant, both the accused had availed a loan of Rs.10,00,000/- from him and had executed a hundi chitthi on 8.7.2017 in his favour towards repayment. In discharge of aforesaid liability, accused No.1 namely Mr. Ajay Sharma had tendered a post dated cheque bearing No.078389 dated 8.5.2018 in the sum of Rs.10,00,000/- drawn on Union Bank of India, Scheme No.54 Branch, Indore in his favour. The accused had assured that the cheque will be honoured on its due date. The complainant presented the cheque in his bank for encashment but the same was dishonored due to insufficiency of funds in the Bank account of the drawer. The complainant upon receiving the return memo from his banker issued notice on 18.5.2018 to the accused demanding payment of the amount of cheque. The notices were refused by the accused nor was the amount of the cheque paid to him. In such circumstances he has instituted the present proceedings against the accused before the trial Court.

5. Learned counsel for the petitioner has submitted that the cheque in question had been signed by accused No.1 Amit Sharma only and not by the petitioner. In the complaint itself the complainant has stated so. There is no averment that the petitioner has issued any cheque in favour of the complainant. Though the petitioner may be alleged to be a person who has not repaid the debt to the complainant but for fastening liability under section 138 of the Act, 1881 it was mandatory for him to have signed the cheque issued in favour of the complainant. The same has admittedly not been done in view of which the proceedings against the petitioner deserve to be quashed.

6. Per contra, learned counsel for the complainant has submitted that the petitioner had also borrowed amount from the complainant and had executed a hundi chitthi in his favour as regards repayment of the amount but no such repayment has been made. The cheque was issued by accused No.1 towards discharge of liability of both the accused hence the petitioner is also liable for prosecution under section 138 of the Act, 1881 in the same manner as accused No.1. There is sufficient ground for proceeding with against the petitioner in view of which the petition deserves to be dismissed.

7. I have considered the submissions of the learned counsel for the parties and have perused the record.

8. For appreciation of the dispute between the parties it would be apposite to reproduce section 138 of the Act, 1881 which is 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 be extended to two years], or with fine which may extend to twice the