Murari Lal Kanodia vs State & Anr.
2009 Latest Caselaw 5110 Del

38.

% 09.12.2009

Present:   Mr. S.K. Pruthi, Adv. for the Petitioner.
           Ms. Santosh Kohli, APP for the State.

+ Crl.M.A. No. 5054/2009

      Allowed, subject to all just exceptions.         Certified copies of

documents be made available as and when it is available.

      Crl.M.A.5054/2009 stands disposed of.

Crl.M.C. No.1405/2009 and Crl.M.A. No. 5053/2009

      This is a petition under Section 482 of the Code of Criminal

Procedure for quashing the order dated 20th February, 2009 whereby

the petitioner was summoned to face trial under Section 138 of

Negotiable Instruments Act.

      The case of Respondent No. 2 in the complaint is that the

petitioner had agreed to sell one shop to him for a consideration of

Rs.62,50,000/- and had executed certain documents such as GPA, Will,

etc. in his favour. It has been further alleged in the complaint that

though the petitioner had been promising to deliver possession of the

aforesaid property to him, he instead of doing that, sold that property

to one Anita Dawar and handed over the possession to her. It has

been further alleged that when there was a hot exchange of words

between complainant and petitioner, his brother Shri Madan Mohan Kanodia intervened in the matter and agreed to return the whole

amount which the complainant had paid to the petitioner. A cheque

for Rs.5,00,000/- is alleged to have been issued by the petitioner to

the complainant. When presented to the bank, the cheque was

dishonoured with remarks "No Such Account". The amount of the

cheque having not been paid, despite notice of demand, the present

complaint was filed by Respondent No. 2. The learned counsel for the

Respondent No. 2 concedes that cheque in question has been drawn

by Shri Madan Mohan Kanodia, brother of the petitioner and not by

the petitioner.

Section 138 of Negotiable Instruments Act, to the extent it is

relevant, provides that where a cheque drawn by a person and issued

towards 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

available in the bank account being insufficient to honour the cheque

or on the ground that the amount exceeds the arrangement made to

be paid from that account, such person shall be deemed to have

committed an offence. Thus, it is the drawer of cheque who is liable

to punishment under Section 138 of Negotiable Instruments Act in

case a cheque issued by him towards discharge of whole or part of

any debt or liability is dishonoured, for the reasons stated in Section 138 of Negotiable Instruments Act. As defined in Section 7 of

Negotiable Instruments Act, the maker of a cheque is called the

„drawer‟.

Since admittedly, cheque in question was drawn by Shri Madan

Mohan Kanodia and not by the petitioner, no offence under Section

138 of Negotiable Instruments Act has been made out against him on

account of dishonour of the cheque issued by his brother.

Since, no offence under Section 138 of Negotiable Instruments

Act is made out from the admitted allegations, the proceedings

initiated by the respondent against the petitioner under Section 138

of Negotiable Instruments Act cannot continue further and the same

are hereby quashed.

V.K.JAIN, J DECEMBER 09, 2009 bg