Delhi High Court
Supradip Das vs State & Anr on 10 December, 2009
Author: V. K. Jain
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. 324/2007 & Crl.M.A.2725/2009
SUPRADIP DAS ..... Petitioner
Through Mr.R.K.Sinha, Advocate.
versus
STATE & ANR ..... Respondent
Through Mr.Ami5 Sharma, APP.
CORAM:
HON'BLE MR. JUSTICE V.K. JAIN
ORDER
% 10.12.2009
This is a petition under Section 482 of the Code of Criminal
Procedure, challenging the order dated 4.7.2005, whereby the petitioner
was summoned for the offence punishable under Section 138 of Negotiable
Instruments Act.
A perusal of the complaint filed against the petitioner would show that
according to complainant - Texsa India Ltd., which is respondent No.2 in
this petition, Respondent No.1 in the complaint who is the proprietor of
M/s.Shivani Enterprises, approached the complainant - Company for
purchase of goods/material. Accordingly, an account of respondent No.1
was opened with the complainant - Company. A sum of Rs.46,391/- is due
from respondent No.1 in respect of the goods purchased by him from the
complainant - Company. It has been further alleged in the complaint that
respondent No.1 issued two post dated cheques bearing No.629402 dated
3.12.2004 for Rs.9936/- and 629404 dated 6.1.2005 for Rs.15,180/- against
the total outstanding liability of Rs.46,391/-. The respondent No.1 sought
adjustment of Rs.20,939/- which was granted to him by the complainant.
Even after adjustment an amount of Rs.37,330.40 remained payable by
respondent No.1 to the complainant - Company. It has been alleged in
paragraph 10 of the complaint that on 28.2.2005, respondent No.1 informed
the complainant that respondent No.2 - Mr.Supradip Das , who is the
petitioner before this Court, while employed with the complainant -
Company, had collected an amount of Rs.15,700/- from him giving an
assurance that the amount would be deposited with the complainant -
Company. However, no such amount was deposited by respondent
No.2/petitioner with the complainant - Company.
The cheques issued by respondent No.1 when presented to the Bank
were returned unpaid by the Bank with remarks 'insufficient funds'. Since
no payment was made despite legal notice, the present complaint was filed
seeking summoning of the petitioner for the offences under Negotiable
Instruments Act and summoning and trial of respondent No.2/petitioner
before this Court under Sections 403, 406 and 420 of IPC.
Since cheques in question have beendrawn only by respondent No.1,
the petitioner who is respondent No.2 in the complaint, cannot be said to
have committed an offence punishable under Section 138 of Negotiable
Instruments Act. If an individual, it is only the drawer of the cheque, who is
liable for offence under Section 138 of Negotiable Instruments Act, in case
a cheque issued towards discharge of a legally enforceable debt or liability
when presented to the Bank is dishonoured for want of insufficient funds or
on the ground that the amount of cheques exceeds arrangement made for
payment from the account of the drawer with the Bank. 'Drawer' has been
defined to mean the maker of the cheque. Thus, it was only respondent
No.1 in the complaint, who committed offence under Section 138 of
Negotiable Instruments Act, when the cheques issued by him were
dishonoured for want of funds and he failed to make payment despite notice
of demand.
It appears that the learned Metropolitan Magistrate has mechanically
summoned both the respondents without examining the allegations made
against the petitioner. Neither any offence under Section 138 of Negotiable
Instruments Act is made out against him nor has complainant alleged
commission of any such offence by him. Hence, the petitioner cannot be
tried for the offence under Section 138 of Negotiable Instruments Act. The
impugned order, to the extent that it summons the petitioner for the offence
punishable under Section 138 of Negotiable Instruments Act. It shall,
however, be opened to the learned Metropolitan Magistrate to pass such
order as he may deem appropriate on the other allegations made against
him.
CRL.M.C. 324/2007 & Crl.M.A.2725/2009 stand disposed of.
V.K. JAIN,J
DECEMBER 10, 2009/'sn'
