THE HONOURABLE SRI JUSTICE K.SURENDER CRIMINAL PETITION No.3364 OF 2021

ORDER:

This Criminal Petition is filed by the petitioner/accused No.2 to quash the proceedings in C.C.No.495 of 2017 pending on the file of the Principal Judicial First Class Magistrate, Mahaboobnagar.

2. Heard learned counsel for the petitioner and Sri M.Vivekananda Reddy, learned Assistant Public Prosecutor for respondent No.1 – State. Perused the record.

3. The petitioner is accused No.2, questioning his implication in the complaint filed by respondent No.2/complainant under Section 138 of the Negotiable Instruments Act, 1881.

4. Respondent No.2 lodged a complaint under Section 138 of NI Act against the petitioner herein as accused No.2 and the petitioner’s brother as accused No.1, namely, H.Raghuram Shetty. In the complaint, it is narrated that the petitioner and accused No.1 are brothers. Respondent No.2 arranged an amount of Rs.1,00,000/- for accused No.1, and towards repayment of the said amount, a cheque was issued to respondent No.2 by accused No.1. The said cheque was returned unpaid on the ground of ‘insufficient funds’. Since accused No.1 was avoiding respondent No.2 and also repayment of the said amount, respondent No.2 requested the petitioner to settle the matter. The petitioner was arrayed as accused No.2 in the complaint only on the ground that the cheque was issued by accused No.1 in the presence of the petitioner.

5. It is not in dispute that the cheque was issued by the accused No.1 in his personal capacity. Under Section 138 of NI Act, the person who had issued cheque can only be prosecuted. Even if in the complaint it is stated that the petitioner, who is the brother of accused No.1, was present when the cheque was issued, the presence of the petitioner when the cheque was issued cannot be a ground to prosecute the petitioner for the offence under Section 138 of NI Act.

6. It is relevant to refer to Section 138 of NI Act and the same is extracted hereunder:

“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 provisions 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 amount of the cheque, or with both:

Provided that nothing contained in this section shall apply unless—

(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;

(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, [within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;

and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.

Explanation.—For the purposes of this section, “debt or other liability” means a legally enforceable debt or other liability.]”

7. The cheque was not issued by the petitioner and the question of prosecution against the petitioner does not arise. 8. Accordingly, this Criminal Petition is allowed and the proceedings in C.C.No.495 of 2017 pending on the file of the Principal Judicial First Class Magistrate, Mahabo