Delhi High Court
M/S Rushi International vs The State (Nct Of Delhi) & Ors. on 12 November, 2010
Author: A. K. Pathak
IN THE HIGH COURT OF DELHI: NEW DELHI
+ CRL. M.C. 2257/2007
% Judgment decided on: 12th November, 2010
M/S RUSHI INTERNATIONAL ..... Petitioner
Through: Mr. O.P. Gulabani, Adv.
Versus
THE STATE (NCT OF DELHI) & ORS. .....Respondent
Through: Mr. M.P. Singh, APP
Coram:
HON'BLE MR. JUSTICE A.K. PATHAK
1. Whether the Reporters of local papers No
may be allowed to see the judgment?
2. To be referred to Reporter or not? No
3. Whether the judgment should be Yes
reported in the Digest?
A.K. PATHAK, J. (Oral)
1. Respondent no. 2 had filed a complaint under Section
138 of the Negotiable Instruments Act, 1881 (for short
hereinafter referred to as "the N.I. Act") against the petitioner
(accused no. 2 before the Trial Court) and one Ms. Daya
Sharma, which is pending Trial.
2. Facts as alleged in the complaint are that the petitioner
had been running a pharmaceutical company; whereas
Respondent no. 2 was engaged in advertisement business.
They had business dealings, inasmuch as certain
advertisements were got published by the petitioner through
respondent no. 2. A sum of ` 21,76,432/- was due and
payable by the petitioner to respondent no. 2 towards the
advertisement charges. Till 2004, a sum of ` 3 lakhs had
been paid. For remaining amount, nineteen post dated
cheques had been issued by Ms. Daya Sharma (accused no.1)
in order to clear the aforesaid liability of petitioner. On
presentation, one such cheque bearing no. 905300 dated 30th
November, 2005 for Rs. 1 lakh drawn on Indian Bank, New
Patliputra Colony Branch, Patna, was returned dishonoured
on 27th December, 2005 with the remarks "insufficient
funds". Cheque amount was not paid within the statutory
period inspite of service of legal demand notice dated 27th
January, 2006; hence, the complaint was filed.
3. After recording pre-summoning evidence, Metropolitan
Magistrate vide order dated 15th April, 2006 has summoned
the petitioner under Section 138 of the N.I. Act. Feeling
aggrieved by this order petitioner has approached this Court
by the present petition under Section 482 of the Code of
Criminal Procedure (Cr.P.C.) for quashing of complaint.
4. It is contended that the petitioner is not „drawer‟ of the
cheque. A complaint under Section 138 of the N.I. Act, upon
dishonour of a cheque, can be maintained only against the
„drawer‟ and not any other person. Reliance has been placed
on P.J. Agro Tech, Limited & Ors. Vs. Water Base Limited
2010 AIAR (Crl.) 743.
5. I have perused the complaint filed by respondent no. 2
before the Trial Court. Bare perusal thereof clearly shows
that the cheque had been issued by Ms. Daya Sharma and
not by the petitioner. A perusal of cheque (Ex. CW1/C) also
confirms this fact. Ms. Daya Sharma is „drawer‟ of the cheque
in question. As per the complaint, even no demand notice
was served on the petitioner. In para 9 of the complaint it
has been specifically mentioned that on receiving information
about dishonourment of the cheque, legal demand notice was
issued to Ms. Daya Sharma (accused no.1) through
Registered A.D. post on 27th January, 2006. Thus, it is clear
that Daya Sharma is „drawer‟ of the cheque in question.
6. At this stage, relevant it would be to reproduce Section
138 of the N.I. Act, which reads 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
provisions of this Act, be punished with
imprisonment for ["a term which may extend
to two year"], 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 induce 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 cheques 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
purpose of this section, "debt or other
liability" means a legally enforceable debt or
other liability."
7. Bare perusal of the aforesaid provision clearly shows
that in order to attract the ingredients thereof, a cheque
which is dishonoured will have to be drawn by a person on an
account maintained by him with the 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. It is only such a cheque, which is
dishonoured, would attract the provisions of Section 138 of
the N.I. Act against the „drawer‟ of the cheque. Accordingly,
in my view, a complaint under Section 138 of the N.I. Act can
be maintained only against the „drawer‟ of the cheque and no
one else even if such a cheque had been issued by the
„drawer‟ in discharge of liability of a third party. In such an
eventuality such third party cannot be impleaded as an
accused.
8. In P.J. Agro Tech (supra) in the similar facts, Supreme
Court has held as under :-
"In the instant case, the cheque which had
been dishonored may have been issued by
the Respondent No. 11 for discharging the
dues of the Appellant No. 1 Company and its
Directors to the Respondent No. 1 Company
and the Respondent Company may have a
Company for recovery of its dues before
other fora, but it would not be sufficient to
attract the provisions of Section 138 of the
1881 Act. The Appellant Company and its
Directors cannot be made liable under
Section 138 of the 1881 Act for a default
committed by the Respondent No. 11. An
action in respect of a criminal or a quasi-
criminal provision has to be strictly
construed in keeping with the provisions
alleged to have been violated. The
proceedings in such matters are in
personam and cannot be used to foist an
offence on some other person, who under the
statute was not liable for the commission of
such offence."
9. Since the petitioner is not „drawer‟ of the cheque in
question, he cannot be impleaded as an accused in a
complaint under Section 138 of the N.I. Act nor could he be
summoned by the Metropolitan Magistrate. Accordingly,
impugned order as well as the complaint qua the petitioner is
quashed.
10. Petition is disposed of in the above terms.
A.K. PATHAK, J.
NOVEMBER 12, 2010
ga
